                     In the Missouri Court of Appeals
                             Eastern District

                                        DIVISION TWO


DARYL DAVIS,                                 )       No. ED101319
                                             )
       Movant/Appellant,                     )       Appeal from the St. Louis
                                             )       County Circuit Court
vs.                                          )
                                             )       Honorable Ellen L. Siwak
STATE OF MISSOURI,                           )
                                             )       Filed: February 3, 2015
       Respondent.                           )

                                          Introduction

       Daryl Davis (Movant) appeals the denial of his Rule 29.15 motion for post-conviction

relief. Movant claims the motion court erred by denying his motion without an evidentiary

hearing because Movant alleged facts showing that counsel’s performance was ineffective for (1)

failing to strike an allegedly sleeping juror and request the trial court to voir dire the jury

regarding whether it was distracted by the sleeping juror and (2) failing to object, and to request

an instruction that the jury disregard, the State’s “direct reference” to Movant’s right not to

testify during closing argument. According to Movant, but for counsel’s deficient performance,

there is a reasonable probability that he would not have been convicted. We affirm.

                                      Factual Background

       In July 1988, Movant broke into T.W.’s ground-floor apartment and raped her at

knifepoint. In November 1988, Movant broke into S.W.’s ground-floor apartment, told her he
had a knife, and raped her twice. After both assaults, the victim reported the rape and a rape kit

was performed for each victim at St. Anthony’s Hospital. The rape kits were sent to the St.

Louis County Crime lab, where a forensic scientist tested swabs from the kits for biological

evidence. Sperm was identified and the samples were retained for future testing. Approximately

twenty years later, DNA testing of the DNA profile of the unknown male found on S.W.’s and

T.W’s vaginal swabs confirmed that Movant could not be excluded as the source of the male

DNA.1 Subsequently, a jury found Movant guilty of three counts of forcible rape. In 2011, the

trial court entered a judgment consistent with the jury’s verdict and sentenced Movant to three

consecutive terms of life imprisonment.                This Court affirmed Movant’s convictions and

sentences on direct appeal. State v. Davis, 365 S.W.3d 617 (Mo. App. E.D. 2012).

        In July 2012, Movant filed a pro se Rule 29.15 motion for post-conviction relief.

Thereafter, appointed counsel timely filed an amended motion alleging two allegations of

ineffective assistance of counsel. First, Movant alleged that defense counsel rendered deficient

performance by failing to strike Juror 9, who “everyone knew” was sleeping during trial, by

failing to request the trial court to voir dire the other jurors, and that Movant was thereby

prejudiced because he was deprived of a “distract-free verdict . . . .” Second, Movant alleged

that defense counsel rendered deficient performance by failing to object to, and request either a

mistrial or limiting instruction for, the State’s remark during closing argument that directly

referenced Movant’s right not to testify, and that Movant was thereby prejudiced because the

guilty verdict was likely inferred from his decision not to testify at trial.

        The motion court denied Movant’s motion without an evidentiary hearing. With respect

to both claims, the motion court found that Movant failed to allege facts in support of his claims


1
  A forensic scientist testified that the estimated frequency of the DNA profile from the sperm found on both swabs
in the African-American population was one in five quadrillion eight hundred sixty-five trillion.


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and failed “to show” how he was prejudiced by counsel’s performance or how his claims would

have provided him with a viable defense. Movant appeals.

                                       Standard of Review

       Our review of the denial of a Rule 29.15 post-conviction motion is limited to a

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

erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous if, after a review of

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

Mullins v. State, 262 S.W.3d 682, 684 (Mo. App. E.D. 2008).

                                            Discussion

       In both points relied on, Movant alleges that the motion court erred by denying him an

evidentiary hearing because he alleged facts showing that defense counsel’s performance was

deficient and that he thereby suffered prejudiced. To be entitled to an evidentiary hearing

regarding a Rule 29.15 post-conviction motion for relief, the movant “must allege facts, not

conclusions, which are not refuted by the record and [i]f true, entitle the movant to relief.”

Cummings v. State, 445 S.W.3d 648, 650 (Mo. App. E.D. 2014). “The matters complained of

must have resulted in prejudice to the movant.” Id.

       As such, to be entitled to an evidentiary hearing for post-conviction relief based on a

claim of ineffective assistance of counsel, a movant must allege facts, not refuted by the record,

that “(1) counsel’s performance did not conform to the degree of skill, care, and diligence of a

reasonably competent attorney, and (2) counsel’s deficient performance prejudiced the movant.”

Burnett v. State, 311 S.W.3d 810, 817 (Mo. App. E.D. 2009). Prejudice is shown where “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine




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confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “There is a

strong presumption that counsel’s conduct was reasonable and effective.” Gill v. State, 300

S.W.3d 225, 232 (Mo. banc 2009).

                                    Point I: Juror Misconduct

       In his first point relied on, Movant alleges that the motion court erred by denying his

motion without an evidentiary hearing because defense counsel’s performance was ineffective

for failing to strike Juror 9 who “everyone knew” was sleeping during the trial and for failing to

request the trial court to voir dire the jury regarding whether the sleeping juror distracted them.

According to Movant, but for defense counsel’s errors, there is a reasonable probability that the

allegedly sleeping juror would have been dismissed, the jury would not have been distracted by

the sleeping juror, and Movant would not have been convicted.        In response, the State argues

that the motion court did not clearly err by denying Movant’s post-conviction motion because

counsel’s performance was not deficient and Movant failed to allege facts warranting relief.

       During trial, the trial court initially made the parties aware that it had observed Juror 9

“nodding [off] a little bit.” Specifically, the trial court informed counsel at a bench conference

that it did not actually see Juror 9 sleeping, but that it had had the bailiff pass the juror some

water and would “just keep [an] eye out.” At a later bench conference, the trial court informed

counsel that Juror 9 had passed the bailiff a note indicating that it was difficult for him to stay

awake during the proceedings. The trial court told counsel, that although it had not seen Juror 9

sleeping, it would continue to monitor the juror. The State and defense counsel agreed that the

juror should remain on the jury, given that two alternate jurors were presently on the panel, but

that Juror 9 could be removed by motion of either party and replaced with one of the alternate

jurors before submission of the case. After closing argument, defense counsel moved to remove




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Juror 9 and the State agreed. The trial court granted the motion by consent and an alternate juror

was sent to deliberate.

       Under these circumstances, Movant’s allegation that defense counsel’s performance fell

below objective standards of reasonableness is refuted by the record. Given that the trial court

indicated that it would monitor Juror 9, that it was unclear whether Juror 9 had actually fallen

asleep, and that two alternates were available to replace the juror in the instance either party

moved to remove Juror 9 after submission of the case, it was not unreasonable for defense

counsel not to immediately move to strike the juror. This is especially so because there is no

factual support in the record that Juror 9 distracted the other jurors as to affect the jury’s verdict.

Indeed, defense counsel’s decision not to immediately strike Juror 9 and request a voir dire of

each remaining juror indicates a sound trial decision not to bring attention to the allegedly

sleeping juror that would draw the jury’s attention away from the evidence being presented.

While Movant vigorously asserted in his amended motion that a reasonably competent defense

counsel would have immediately moved to strike the sleeping juror and to voir dire the

remaining jurors, Movant did not allege specific facts to rebut the strong presumption that

counsel’s decision to wait until after closing argument to strike the juror was a matter of sound

trial strategy. See Gill, 300 S.W.3d at 232.

       Moreover, even if Movant could establish that counsel’s decision not to immediately

strike Juror 9 was unreasonable, Movant has not pleaded facts that would permit a finding of

prejudice. In his amended motion, Movant asserted that if he had been allowed to contact the

jurors, he anticipated that one or more of them would testify that they knew Juror 9 was sleeping

and that he was thereby prejudiced because he was deprived of a “distract-free verdict by twelve




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impartial jurors . . . .”2 This allegation does not state sufficient facts to support a finding of

prejudice. Rather, Movant’s assertion in this regard is a conclusory statement that assumes Juror

9’s conduct affected the verdict without explaining what specific evidence the jurors missed due

to Juror’s 9 conduct. See Vann v. State, 26 S.W.3d 377, 380 (Mo. App. S.D. 2000) (mere fact of

sleeping juror does not automatically establish prejudice, as a movant must allege facts as to the

specific evidence that was missed).            A movant must come forward with facts, not mere

conclusory allegations, in order to support a post-conviction motion.                    See Cummings, 445

S.W.3d at 650. Movant failed to meet this burden.

        Having reviewed the record, we conclude that Movant failed to allege unrefuted facts that

counsel’s performance was defective and caused prejudice to Movant as to entitle Movant to an

evidentiary hearing. Accordingly, because Movant failed to sufficiently allege unrefuted facts to

support his claim, the motion court did not err by denying Movant’s post-conviction motion

based on this ground. Point I denied.

                             Point II: Comments During Closing Argument

        In his second point relied on, Movant alleges that the motion court erred by denying his

motion without an evidentiary hearing because defense counsel’s performance was ineffective

for failing to object to, and either request a mistrial or curative instruction for, the State’s “direct

reference” to Defendant’s right not to testify during closing argument. Specifically, Movant

asserts defense counsel failed to object on this ground when the State asked “where [Movant]

was and stat[ed] that there was no evidence presented that [Movant] was somewhere other than

in that apartment . . . .” According to Movant, had counsel objected and requested a mistrial or

2
  Movant raises an additional argument in his brief on appeal, arguing that he anticipated that one or more jurors
would testify that they were also affected by Juror 9’s conduct. However, in an action under Rule 29.15, “any
allegations or issues that are not raised in the Rule 29.15 motion are waived on appeal.” Johnson v. State, 333
S.W.3d 459, 471 (Mo. banc 2011) (citation and quotations omitted). In any case, we note that nothing in the record
indicates that Juror 9 distracted the other jurors as to affect the jury’s verdict.


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limiting instruction, there would be a reasonable probability that the jury would not have

convicted Movant. In response, the State asserts that an objection by defense counsel in this

regard would have been meritless because the State’s remarks during closing argument were

neither direct nor indirect references to Movant’s right not to testify.

       “The Fifth Amendment to the United States Constitution, Article I, section 18 of the

Missouri Constitution, section 546.270, RSMo 1994, and Supreme Court Rule 27.05(a) grant

criminal defendants the right not to testify and forbid comments by either party concerning the

exercise of that right.” State v. Barnum, 14 S.W.3d 587, 591 (Mo. banc 2000). Accordingly, it

is error for counsel to allude, directly or indirectly, to a defendant’s failure to testify. Id. at 592.

Such references violate the defendant’s rights not to testify and freedom from self-incrimination

by “focusing the jury’s attention upon a defendant’s failure to testify.” Id. at 591-92; see State v.

O’Neal, 353 S.W.3d 433, 435 (Mo. App. E.D. 2011).                 In considering whether a remark

improperly references a defendant’s right against self-incrimination, this Court is to consider the

comment in context. O’Neal, 353 S.W.3d at 435. A direct reference will include words such as

“testify,” “accused,” or “defendant,” or their equivalent, whereas an indirect reference is a

statement “reasonably apt to direct the jury’s attention to the defendant’s failure to testify,” State

v. Stites, 266 S.W.3d 261, 269 (Mo. App. S.D. 2008) (citation omitted), and is made with a

“calculated intent to magnify [the defendant’s] decision . . . ,” State v. Neff, 978 S.W.2d 341, 344

(Mo. banc 1998).

       Here, the State made the following comments during closing argument:

               [Movant’s] allegation is that we put his sperm on there. It is ridiculous. It
       is ridiculous. Our evidence is uncontradicted and uncontroverted that he was in
       [S.W.’s] apartment raping her twice. Uncontradicted, uncontroverted that he was
       in [T.W.’s] apartment raping her. You can’t be in two places at once. DNA proves
       he was there.




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               If he wasn’t there in their apartment raping them, where was he? There’s
       been no evidence presented he was somewhere other than in that apartment raping
       both of these women.

Defense counsel objected on the basis that the State had improperly shifted the burden of proof.

At a bench conference, the State explained to the trial court that it was “not addressing who

[Movant] put on or didn’t put on . . . [but] point[ing] out the fact that there is no evidence to

support [Movant’s] argument.” The trial court agreed with the State that its argument did not

shift the burden of proof and overruled defense counsel’s objection.

       In considering Movant’s claim, the motion court found that the “State’s closing argument

was not an improper reference, nor a direct reference, to Movant’s failure to testify” and that the

trial court would not have sustained such an objection or granted a mistrial on that basis.

Accordingly, the motion court found that Movant had failed to plead sufficient facts to support

his motion, or show how he was prejudiced, and ultimately denied relief on this ground.

       Having reviewed the record, we cannot conclude that the motion court’s findings were

clearly erroneous.    The State’s remark—“[t]here’s been no evidence presented he was

somewhere other than in that apartment raping both of these women”—is not a direct reference

to Movant’s right not to testify. Plainly, the State’s comment did not include specific reference

to Movant’s right against self-incrimination through the use of words like “testify,” “accused,” or

“defendant,” or their functional equivalent.    See Stites, 266 S.W.3d at 269. Rather, when

considered in context, it is clear that the State’s argument was intended to direct the jury’s

attention to the lack of any evidence that Movant was not the rapist. As such, the State’s

comments are also not an indirect reference to Movant’s right against self-incrimination. In no

way does the State’s comment implicate Movant’s right not to provide testimony in his defense

or evince a “calculated intent to magnify” Movant’s decision not to testify. Neff, 978 S.W.2d at




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344. In other words, the State’s commentary on the lack of evidence supporting Movant’s theory

of the case is not “reasonably apt to direct the jury’s attention to the defendant’s failure to

testify,” Stites, 266 S.W.3d at 269, and Movant cites no other factual support indicating

otherwise. See State v. White, 291 S.W.3d 354, 360 (Mo. App. S.D. 2009) (comments on a

defendant’s failure to offer evidence and comments indicating that the evidence is

“uncontroverted” or “uncontradicted” are not direct or indirect references to the defendant’s

failure to testify).

        Because the State did not improperly reference Movant’s right not to testify during its

closing argument, any objection on this basis would have been futile and a request for a curative

instruction or mistrial would not have been granted.        Counsel does not render ineffective

assistance by failing to raise a meritless objection or to make a meritless motion. See Middleton

v. State, 103 S.W.3d 726, 741 (Mo. banc 2003). Under these circumstances, Movant failed to

allege unrefuted facts that counsel’s performance fell below objective levels of reasonableness.

        Further, even assuming counsel’s performance was deficient, Movant did not establish

prejudice.    This is because, even if defense counsel had objected, there is no reasonable

probability that the result of the trial would have been different. See Strickland, 466 U.S. at 694.

The evidence against Movant was overwhelming and uncontroverted. Mainly, DNA testing of

the DNA profile of the unknown male found on S.W.’s and T.W’s vaginal swabs confirmed that

Movant could not be excluded as the source of the male DNA and no evidence supported that

Movant was not the rapist.

        In sum, because Movant failed to allege unrefuted facts that defense counsel rendered

deficient performance by failing to object to the State’s closing argument and that Movant was




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thereby prejudiced, this claim lacks merit. The motion court did not clearly err by denying

Movant’s post-conviction motion on this ground. Point II denied.

                                         Conclusion

       The judgment of the motion court is affirmed.




                                           _________________________________
                                           Philip M. Hess, Judge


Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.




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