         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT

TAQWA THOMPSON,                               )
                                              )
               Appellant,                     )      WD75688
                                              )
vs.                                           )      Opinion filed: March 25, 2014
                                              )
STATE OF MISSOURI,                            )
                                              )
               Respondent.                    )


      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
                 THE HONORABLE DAVID M. BYRN, JUDGE

                 Before Division Three: Anthony Rex Gabbert, Presiding Judge,
                    Victor C. Howard, Judge and Thomas H. Newton, Judge


       Taqwa Thompson appeals the judgment of the motion court denying his Rule 29.15

motion for postconviction relief following an evidentiary hearing. Thompson sought to vacate

his convictions for second-degree murder and armed criminal action and concurrent sentences of

twenty years and five years imprisonment, respectively. He claims that the motion court clearly

erred in denying his motion because he received ineffective assistance of counsel when counsel

failed to request an instruction for a lesser included offense, failed to strike a venireperson, and

failed to adequately cross-examine or impeach the chief medical examiner. The judgment is

affirmed.
                             Factual and Procedural Background

       Thompson was convicted of murder in the second degree and armed criminal action and

sentenced to twenty years and five years imprisonment, respectively. Viewed in the light most

favorable to the verdict, the evidence at trial showed the following.        On April 2, 2008,

Thompson, Markest Scott, and a person known as T.J. were walking down North Mersington in

Kansas City. Thompson broke away from the other two men and crossed the street where the

victim, Ricardo Jimenez, was walking toward an apartment building. A resident of the building

observed Thompson, wearing a Kansas City jacket and a red cap, enter the building behind the

victim. Another resident also noticed Thompson entering the building, wearing the Kansas City

jacket and red cap. Thompson walked up as the victim was entering the building and shot him.

The victim said, “He shot me,” and fell in the doorway. A building resident called 911, but the

victim died in a matter of minutes and was pronounced dead at the scene.

       Thompson rejoined Scott, and they ran off together. T.J. ran in a different direction.

Thompson tried to give the gun to Scott, but he wouldn‟t take it.

       One of the building residents described Thompson and Scott to Aaron Stanley, who was

in the building. Stanley got in his vehicle and drove in the direction that the two men had gone.

Stanley saw two men matching the description and called the police.

       The police found Thompson and Scott standing on a bridge at Lexington and Lebelle.

When he saw the police, Thompson put the gun in his red baseball cap and threw it off the

bridge. Thompson and Scott were arrested, and Scott showed the police where the red cap was.

The police found the gun inside the cap; the Kansas City jacket was on the sidewalk. DNA

profiles from the trigger, the cap, and the jacket matched Thompson.




                                                2
           Thompson told police that he did not know the victim and that he had not been north of

St. John Avenue that day. The scene of the shooting, 207 North Mersington, is about two blocks

north of St. John Avenue. Thompson did not mention an accidental shooting of the victim and

did not indicate any knowledge of the shooting or any familiarity with the victim.

           During voir dire, the prosecutor asked the panel if anyone was familiar with the area of

207 Mersington in Kansas City where the shooting occurred. Venireperson No. 3 responded that

she was:

           VENIREPERSON NO. 3: I kind of know the area. I don‟t live there, but I kind
           of know where stuff is. But I don‟t live near there.

           PROSECUTOR: Okay. Anything about the fact that you‟re aware of this
           circumstance, would that affect your ability to be fair and impartial in this case?

           VENIREPERSON NO. 3: Yes.1

           PROSECUTOR: Okay, thank you. Anyone else? I see no other hands.

Neither party followed up with further questioning of Venireperson No. 3, and defense counsel

did not move to strike her.

           At trial, the chief medical examiner, Dr. Mary Dudley, testified about the cause and

manner of the victim‟s death. In forming her conclusions about these matters, Dr. Dudley

reviewed the autopsy report prepared by Dr. Laura Knight, the deputy medical examiner who

performed the autopsy. Dr. Dudley explained that the bullet entered the back of the victim‟s

right shoulder, passed through the posterior right shoulder, the posterior or back fourth rib, and

the right lung, and grazed the right side of the heart. The trajectory of the bullet, going through

the right shoulder, was downward and forward. The bullet was recovered on the front of the

chest on the right side.



1
    The motion court later found the transcript incorrect and Venireperson No. 3 had actually responded, “No.”

                                                           3
       During cross-examination by defense counsel, Dr. Dudley admitted that she did not

conduct the autopsy, was not present for the autopsy, and never viewed the body. She also

testified that she could not tell how far the gun was from the victim‟s body when he was shot but

that she “would call it a distant range wound” because there was no soot in or around the wound

and no burnt or unburnt gunpowder stippling around the wound. Dr. Dudley admitted, “even if

there was clothing there, that may make a difference on what‟s deposited, you know, on the

jacket.” Dr. Dudley also admitted that Dr. Knight concluded that the gunshot wound was

“penetrating, indeterminate range.” Finally, Dr. Dudley again admitted that she never saw the

body, was not present for the autopsy, and never personally viewed the gunshot wound.

       In response to counsel‟s cross-examination, the State again elicited on re-direct that Dr.

Dudley concluded that the wound was a “distant range wound” based on “the wound pattern, that

there was no soot or stippling.” She concluded that the weapon was held “at least an arm‟s

length away or over two feet from being in contact with the body.”      Dr. Dudley testified that

when she did her independent analysis, she had the autopsy report, photographs, and clothing

recovered from the victim.

       On re-cross-examination, defense counsel once again elicited that Dr. Knight performed

the autopsy and concluded that the wound was an “indeterminate range gunshot wound.”

       Thompson offered testimony at trial to support his claim that he accidentally shot the

victim while acting in self-defense. He explained that the day before, a friend gave him a gun

that the friend had found. The friend said that he did not think the gun was worth anything

because it did not have a clip. Thompson asked if he could have the gun and told his friend that

he could probably sell it to somebody and make some money. Thompson testified that he was

looking at the gun a little later and that the victim walked by, said, “Hi,” and asked to hold the



                                                4
gun. Thompson refused but told him he could buy it for twenty or thirty dollars because it did

not have a clip. The victim agreed to buy the gun, and they agreed to meet the next day.

Thompson said that while he had the gun, he never fired it or test fired it.

       Thompson testified that the next day, he happened so see the victim walking toward the

apartment building. He walked over and asked if he still wanted to buy the gun. The victim said

that he did and told Thompson “to meet him inside an apartment building so nobody sees us

making the transaction.” Thompson followed the victim into the building.

       Thompson said that, once inside, he “pulled out the gun ready to make the transaction.”

The victim “tried to reach for the gun.” Thompson “tried to turn around and leave,” but the

victim grabbed the back of his jacket. Thompson tried to pull away, said “let me go,” but the

victim would not let go. Thompson testified that he then “tried to pull away with the gun,” and

that “when [he] was trying to pull away at the same time, [his] finger slipped and hit the trigger

and the gun went off.” He explained that his coat was loose, “so [he] was halfway almost facing

him.” He said, “So when I reached around, he had moved a little bit so I couldn‟t hit him and my

arm reached around and I tried to push off. That‟s when my finger hit the trigger and the gun

discharged.” Thompson further explained that the victim was crouched down and that the gun

never touched the victim. He said that when the victim told him that he had shot him, “I was

“shocked, because I didn‟t believe there was no bullet in the gun.”               He said, “From my

knowledge, that‟s what was told to me, so I was shocked.” He said that his friend “got the gun

with no clip,” so he “didn‟t believe there was a bullet in there with no clip.”

       After shooting the victim, Thompson panicked and took off running. He admitted that he

put the gun in his hat and dropped it off a bridge. He also admitted that he lied to the police,




                                                  5
explaining that he “was scared and [he] didn‟t know what else to do.” Thompson testified that

he did not intend to shoot the victim and that he did not intend to harm him.

          On cross-examination, Thompson testified that when the victim would not let go of his

jacket, he “tried to swing around and hit him with the gun.” He said that he missed and “kind of

jerked back,” and he guessed his “finger hit the trigger and the gun went off.” He said that he

was trying to hit the victim “[t]o loosen up his grip a little bit to where [he] can pull away and

leave.”

          After the close of the evidence, defense counsel argued for a self-defense instruction.

Counsel also argued that the self-defense instruction should instruct the jury on the use of non-

deadly force “because from our view, [Thompson] did not intend to use deadly force.” The trial

court agreed to submit a self-defense instruction that included the non-deadly force language.

The trial court also submitted Thompson‟s instruction on the lesser included offense of

involuntary manslaughter.

          In closing argument, defense counsel argued that the State had not proved that the “this

was an intentional shooting.” Counsel argued:

          Mr. Jimenez was grabbing him by the jacket and pulling him down. Mr.
          Thompson had a very small gun, that he believes is unloaded. And he simply
          tries to strike him. That is lawful self-defense. Do not be fooled by the fact that
          the gun went off. It could have been a cell phone in his hand. It could have been
          a book in his hand. It could have been anything. He still has the right to do that.
          It happened that the gun discharged. But he didn‟t intend that. He did not intend
          to use deadly force.

Defense counsel then argued that if the jury thought Thompson had been reckless, then he was

guilty of involuntary manslaughter. Counsel stated, “At worst, it was reckless for him to go over

there with a gun. But I will submit to you that he did not know there was a live round in that

gun.”



                                                  6
       The jury found Thompson guilty of second degree murder and armed criminal action, and

the trial court sentenced him to concurrent sentences of twenty years and five years

imprisonment, respectively. This court affirmed the convictions and sentences on direct appeal.

State v. Thompson, 336 S.W.3d 211 (Mo. App. W.D. 2011).

       Thereafter, Thompson filed a pro se Rule 29.15 motion for postconviction relief.

Appointed counsel filed an amended motion on Thompson‟s behalf. The amended motion

alleged, in pertinent part, that trial counsel was ineffective in failing to request an instruction for

the lesser included offense of voluntary manslaughter; failing to strike Venireperson No. 3, who

had indicated that she could not be fair and impartial; and failing to adequately cross-examine or

impeach the chief medical examiner‟s opinion that the victim‟s wound was a “distant range

wound.”

       The motion court held an evidentiary hearing on Thompson‟s motion. Defense counsel

testified that the defense strategy was that Thompson had shot the victim in self-defense—that

“in defending himself, that the gun accidently was discharged.” She stated that “our theory was

that he was under the belief that the gun was not loaded.” That belief, she said, was based on the

fact that “the magazine or the clip” was missing from the gun. Defense counsel also testified that

the defense requested an instruction on self-defense and on the lesser included offense of

involuntary manslaughter. She did not recall whether she considered requesting an instruction

for voluntary manslaughter. When asked if an instruction on voluntary manslaughter would have

been inconsistent with the defense strategy of an accidental shooting in response to being

attacked, or in self-defense, she said, “No, I guess not.” On cross-examination, defense counsel

testified that the self-defense claim “was not shooting him in self-defense,” rather the claim “was

mixed up in another self-defense claim.”           She testified that she submitted involuntary



                                                  7
manslaughter because she wanted to be able to argue that “if it wasn‟t self defense, it was

reckless.” She explained that the defense never admitted “to the jury that the shooting, itself,

was an intentional shooting,” and that she did not want the jury to believe that the shooting was

intentional. She stated that it was not the defense theory to argue an intentional shooting “[i]n

the heat of passion.”

       Defense counsel further testified that if the transcript were correct, she would have

wanted to strike Venireperson No. 3 for cause. On cross-examination, she testified that her notes

indicated that Venireperson No. 3 had responded in the negative when asked if her familiarity

with the area would keep her from being fair and impartial. She stated that her co-counsel‟s

notes also indicated that the venireperson had answered no.           She also testified that if

Venireperson No. 3 had responded that she could not be fair and impartial, she would have

followed up by moving to strike her from the jury. On re-direct, counsel clarified that her notes

did not actually indicate that the venireperson had answered no but read verbatim, “Three, know

area, don‟t live there, F&I,” with F&I meaning that the venireperson would be fair and impartial.

       The State presented the testimony of Bryan Covinsky, an assistant prosecutor in Jackson

County, and Jennifer Phillips, a trial team leader at the Jackson County Prosecutor‟s Office.

Covinsky testified that he did the questioning during voir dire in this case and that his notes

indicated that Venireperson No. 3 could be fair and impartial despite being familiar with the

area. He explained that if she had indicated that she could not be fair and impartial, he would

have followed up with additional questions. Phillips testified that her notes indicated that the

venireperson said that she could be fair and impartial and that there were no follow up questions

based on her response. On cross-examination, Phillips stated that she thought the trial transcript

was incorrect in reporting Venireperson No. 3‟s response.



                                                8
       The motion court also made a record at the evidentiary hearing about the notes it had

taken during voir dire. The court‟s notes indicated that Venireperson No. 3 “Generally knows

the scene.” The notes also included the notation “FI,” which meant “her answer indicated to me

that she could be fair and impartial.” The motion court also stated that it had listened to the

audio transcript of the proceedings and that it believed the venireperson answered no when asked

if her familiarity with the scene would affect her ability to be fair and impartial. The court

further stated that other staff members listened to the tape and some agreed that the venireperson

said no and some believed she said yes. It observed that there was a lot of background noise on

the tape.

       The motion court denied Thompson‟s motion for postconviction relief. This appeal by

Thompson followed.

                                       Standard of Review

       In his three points on appeal, Thompson claims that the motion court clearly erred in

denying his motion for postconviction relief because he received ineffective assistance of

counsel. Appellate review of the denial of a postconviction motion is limited to determination of

whether the motion court‟s findings of fact and conclusions of law are clearly erroneous. Rule

29.15(k); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). Findings of fact and conclusions

of law are clearly erroneous only if, after a review of the entire record, the appellate court is left

with the definite and firm impression that a mistake has been made. Zink, 278 S.W.3d at 175

(quotes and citations omitted).

       On a claim of ineffective assistance of counsel, the burden is on the movant to prove 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



                                                  9
failure prejudiced him. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A

strong presumption exists that counsel‟s conduct was reasonable and effective. Id. at 176. To

show prejudice, the movant must demonstrate a reasonable probability that, but for counsel‟s

errors, the result of the proceeding would have been different. Id.

                 Failure to Request Instruction for Lesser Included Offense

       In his first point on appeal, Thompson contends that counsel was ineffective in failing to

request an instruction for the lesser included offense of voluntary manslaughter because the

evidence would have supported such theory. To establish a claim of ineffective assistance of

counsel for failure to request a lesser included instruction, a movant must show that the evidence

supported submission of the instruction had one been requested, the decision not to request the

instruction was not reasonable trial strategy, and the movant was thereby prejudiced. McNeal v.

State, 412 S.W.3d 886, 889 (Mo. banc 2013); Brock v. State, 242 S.W.3d 430, 433 (Mo. App.

W.D. 2007). “If counsel made an objectively reasonable choice not to submit an available

instruction, the decision would not constitute ineffective assistance of counsel.” Brock, 242

S.W.3d at 433. “It is a tactical decision usually based on the belief—often a reasonable one—

that the jury may convict of the lesser offense, if submitted, rather than render a not guilty

verdict on the higher offense if the lesser is not submitted.” Hendrix v. State, 369 S.W.3d 93,

100 (Mo. App. W.D. 2012)(internal quotes and citation omitted).

       “The crime of voluntary manslaughter is defined as causing the death of another person

under circumstances that would constitute murder in the second degree, except that the death was

caused „under the influence of sudden passion arising from adequate cause.‟” State v. Redmond,

937 S.W.2d 205, 208 (Mo. banc 1996)(quoting section 565.023, RSMo 2000). “Sudden passion”

is “passion directly caused by and arising out of provocation by the victim or another acting with



                                                10
the victim which passion arises at the time of the offense and is not solely the result of former

provocation.” § 565.002(7), RSMo 2000. “Adequate cause” is “cause that would reasonably

produce a degree of passion in a person of ordinary temperament sufficient to substantially

impair an ordinary person‟s capacity for self-control.” § 565.002(1), RSMo 2000.

          Even if the evidence supported an instruction for the lesser included offense of voluntary

manslaughter, which is not decided here, the motion court‟s judgment was not clearly erroneous

because Thompson failed to overcome the presumption that counsel‟s decision not to request the

instruction was reasonable trial strategy. The defense theory at trial was that Thompson acted in

self-defense and used only what he thought was non-deadly force in trying to free himself when

the victim grabbed him. The defense evidence was designed to show that Thompson did not

know that the gun was loaded and that he was merely trying to get away from the victim when

his finger inadvertently hit the trigger of the gun. In closing argument, defense counsel argued

that Thompson was acting in self-defense when he tried to strike the victim after being grabbed,

didn‟t know the gun was loaded, and “did not intend” for the gun to discharge and “did not

intend to use deadly force.” She then argued that if the jury thought Thompson had been

reckless, he was guilty of involuntary manslaughter, conceding, “At worst, it was reckless for

Mr. Thompson to go over there with a gun.”

          Counsel further confirmed at the evidentiary hearing that the defense strategy at trial was

that Thompson had accidently shot the victim in self-defense, believing that the gun was not

loaded.     Although she initially answered, “No, I guess not” when asked if a voluntary

manslaughter instruction would have been inconsistent with the defense strategy, she explained

on cross-examination that the defense never admitted “to the jury that the shooting, itself, was an

intentional shooting,” and that she did not want the jury to believe that the shooting was



                                                  11
intentional. She stated that it was not the defense theory to argue an intentional shooting “[i]n

the heat of passion.” She further testified that she submitted involuntary manslaughter because

she wanted to be able to argue that “if it wasn‟t self defense, it was reckless.” Under these

circumstances, requesting a voluntary manslaughter instruction would have been inconsistent

with the defense‟s theory. “Counsel „had no duty to request an instruction that would undermine

the entire theory of the case presented at trial.‟” McKee v. State, 336 S.W.3d 151, 154 (Mo. App.

E.D. 2011)(quoting Brock, 242 S.W.3d at 434). The motion court did not clearly err in denying

this claim of ineffective assistance of counsel. The point is denied.

                              Failure to Strike Venireperson No. 3

       In his second point on appeal, Thompson claims that counsel was ineffective in failing to

strike, for cause or with a peremptory strike, Venireperson No. 3. He asserts that, according to

the transcript, the venireperson gave a response during voir dire that indicated that she could not

be fair and impartial due to her familiarity with the crime scene and that prejudice is presumed

because a biased juror sat on the jury.

       To prevail on a claim of ineffective assistance of counsel for failure to strike a

venireperson, the movant must show that a juror who was actually biased sat on the jury. Byrd v.

State, 329 S.W.3d 718, 723 (Mo. App. S.D. 2010)(citing State v. Davis, 963 S.W.2d 317, 330

(Mo. App. W.D. 1997)). “A possibility of prejudice is not sufficient to disqualify a juror: „It

must clearly appear from the evidence that the challenged venireperson was in fact prejudiced.‟”

Pearson v. State, 280 S.W.3d 640, 646 (Mo. App. W.D. 2009)(quoting State v. Walton, 796

S.W.2d 374, 377 (Mo. banc 1990)). “If a venireperson unequivocally indicates an ability to

evaluate the evidence fairly and impartially, trial counsel is not ineffective for failing to seek

removal.” Id.



                                                12
        In denying this claim of ineffective assistance of counsel, the motion court initially found

that “the transcript is in error and that the notes and collective memories of all trial counsel,

along with the Court, that venireperson number 3 indicated that her knowledge of the location of

the alleged crime would not affect her ability to be fair and impartial, are accurate.”2 Thompson

argues that the State waived any claim that the transcript was inaccurate by failing to dispute it as

required by Rule 30.04(g) during the direct appeal.

        Thompson relies on two cases, State v. Davis, 573 S.W.2d 114 (Mo. App. 1978), and

Shaw v. State, 347 S.W.3d 142 (Mo. App. S.D. 2011), to support his argument. In Davis, the

trial court approved the accuracy of a trial transcript after the prosecutor refused to approve it;

and, on direct appeal, this court stated that it was “bound to accept the version [of the

prosecutor‟s closing argument] contained in the transcript approved by the trial court.” 573

S.W.2d at 116.

        In Shaw, the sentencing hearing transcript indicated that the court had orally pronounced

and imposed concurrent sentences while the written judgment later indicated that the sentences

were consecutive. 347 S.W.3d at 144. Shaw filed a Rule 24.035 motion to correct the written

judgment to conform to the oral pronouncement. Id. Evidence was presented at the evidentiary

hearing that the judge‟s and defense counsel‟s notes indicated the sentences were to run

consecutively, the transcript showed concurrent sentencing, and the written sentence and

judgment issued showed consecutive sentences. Id. The motion court also stated, “I thought I

had sentenced him to consecutive sentencing” and that the Court of Appeals would have to

resolve whether the transcript or written judgment controlled. Id. The motion court ultimately


2
  The motion court further found that even if the transcript were correct, Thompson failed to prove that he was
prejudiced because the venireperson‟s response did not indicate which party would potentially be favored or
disfavored.


                                                      13
denied Shaw‟s motion, stating in its judgment, “The record in the case below is contradictory in

terms of whether said sentences were to run concurrently or consecutively.” Id. at 145.

       In reversing the motion court‟s judgment and remanding for correction of the written

judgment, the Southern District recited the well-settled proposition that “the written sentence and

judgment in a criminal case may not deviate from the court‟s oral pronouncement of sentence”

and if it does, the oral sentence controls and the written judgment is erroneous. Id. (citing

Hastings v. State, 308 S.W.3d 792, 796 (Mo. App. W.D. 2010), and State v. Patterson, 959

S.W.2d 940, 941 (Mo. App. E.D. 1998)(internal quotes omitted)).

       The Southern District also rejected the State‟s argument on appeal that that motion court

had “implicitly found” that there was an error in the transcript:

       The motion court made no such express finding. Based upon our review of the
       transcript from the evidentiary hearing, we find no support whatsoever for the
       State‟s argument that the judge made an implicit finding to that effect. In point of
       fact, what the judge said was that he „thought‟ he had imposed consecutive
       sentences. He never stated that the official transcript was in error.

Id. at 146. It further stated that because the State failed to follow the procedure for challenging

the accuracy of a transcript in Rule 30.04(g), the appellate court was bound by the certified

transcript from the sentencing hearing, which clearly stated that Shaw‟s sentences were to run

concurrently. Id. Specifically, Rule 30.04(g) provides:

       If there is any dispute concerning the correctness of any legal file or transcript, or
       if the parties fail to agree within a reasonable time as to its correctness, the legal
       file or transcript shall be settled and approved.

The Southern District explained that if the State believed there was an error in the transcript from

the sentencing hearing, it was essential for the State to ask the motion court to settle and approve

the transcript under the rule. Shaw, 347 S.W.3d at 146. It continued, “the motion court could

have held a hearing and heard testimony from court reporter Matthews concerning her notes



                                                 14
relating to the sentencing hearing (and perhaps a backup tape-recording as well) to ascertain

whether there was, in fact, any error in the transcript she prepared.” Id.

          Unlike in Shaw, the State in this case did challenge the accuracy of the transcript within a

reasonable time after the dispute arose, and the motion court expressly found that the transcript

was incorrect. At the evidentiary hearing, the State presented evidence that all of the attorneys at

Thompson‟s trial, defense counsel and the two prosecutors, thought that Venireperson No. 3

indicated she would be fair and impartial. Likewise, the motion court noted on the record that

after reviewing its notes on voir dire and the audiotape of the trial, it believed that the

venireperson had said she could be fair and impartial. In its amended judgment, the motion court

found that the transcript was incorrect and the notes and collective memories of all trial attorneys

and the court was accurate regarding the venireperson‟s response.            The dispute about the

transcript arose in this case after Thompson raised counsel effectiveness for failing to strike

Venireperson No. 3. At that point, the motion court stepped in and resolved it in compliance

with Rule 30.04(g). The motion court may believe or disbelieve any evidence; therefore, this

court defers, and is bound, to accept the motion court‟s determination that the transcript was in

error and that Venireperson No. 3 had indicated that she would be fair and impartial. Byrd, 329

S.W.3d at 724; Davis, 573 S.W.2d at 116. Because Venireperson No. 3 was not biased, defense

counsel was not ineffective in failing to strike her. Pearson, 280 S.W.3d at 646. The motion

court did not clearly err in denying this claim of ineffective assistance of counsel. The point is

denied.

                           Failure to Impeach Chief Medical Examiner

          In his final point on appeal, Thompson claims that counsel was ineffective in failing to

impeach Dr. Dudley‟s expert opinion that the victim‟s wound was a “distant range wound” with



                                                  15
the conclusions of Dr. Knight, the deputy medical examiner who performed the autopsy, that the

range of fire could not be reliably determined because the victim‟s dark clothing may have

obscured any soot or gunpowder. Thompson argues that Dr. Dudley‟s testimony about a “distant

range wound” undermined his defense that he accidently shot the victim at close range while

they were struggling; therefore, reasonably competent defense counsel would have refuted such

testimony with Dr. Knight‟s conclusions that the wound was an “indeterminate range gunshot

wound.” He further argues that had counsel adequately cross-examined Dr. Dudley, there is a

reasonable likelihood of a different outcome at trial.

       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.

State v. Ferguson, 20 S.W.3d 485, 506 (Mo. banc 2000). Contrary to Thompson‟s argument,

defense counsel did cross-examine Dr. Dudley about her opinion that the victim‟s wound was a

“distant range wound.”      She elicited evidence that could have potentially undermined Dr.

Dudley‟s opinion in the minds of the jurors including evidence that Dr. Dudley did not perform

the autopsy, was not present for the autopsy, and never saw the victim‟s body or the gunshot

wound, and that Dr. Knight, who did perform the autopsy, classified the wound was as an

“indeterminate range gunshot wound.” Thompson did not meet his burden of showing that

additional or different cross-examination or impeachment would have changed the outcome of

the trial. The motion court did not clearly err in denying this claim of ineffective assistance of

counsel. The point is denied.

       The judgment of the motion court is affirmed.

                                              ____________________________
                                              VICTOR C. HOWARD, JUDGE
All concur.



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