                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT

 PHILLIP G. PAYNE,                                         )
                                                           )
                                          Appellant,       )
                                                           )    WD79051
 v.                                                        )
                                                           )    OPINION FILED:
                                                           )    November 22, 2016
 STATE OF MISSOURI,                                        )
                                                           )
                                        Respondent.        )


                      Appeal from the Circuit Court of Clay County, Missouri
                            The Honorable Shane T. Alexander, Judge

                  Before Division Two: Lisa White Hardwick, Presiding Judge, and
                       Karen King Mitchell and Anthony Rex Gabbert, Judges

       Phillip Payne appeals, following an evidentiary hearing, the denial of his Rule 29.15

motion for post-conviction relief.1 Payne claims that trial counsel provided ineffective assistance

by: (1) failing to more fully cross-examine the victim; and (2) advising Payne not to testify at trial.

The motion court rejected Payne’s claims. Finding no error, we affirm.




       1
           All rule references are to the Missouri Supreme Court Rules (2016).
                                                Background

        Following a jury trial, Payne was convicted of one count of statutory sodomy, 2 for which

he was sentenced to twenty-five years’ imprisonment. State v. Payne, 414 S.W.3d 52, 53 (Mo.

App. W.D. 2013), abrogated by Hoeber v. State, 488 S.W.3d 648 (Mo. banc 2016). The facts

underlying Payne’s conviction are laid out in the opinion we issued in Payne’s direct appeal, id.,

and will be discussed only to the extent necessary to resolve his post-conviction claims.

        At trial, the State offered testimony from Victim, Victim’s parents, and Victim’s school

counselor.      During cross-examination of Victim, trial counsel pointed out numerous

inconsistencies in Victim’s description of the events leading to Payne’s conviction. Trial counsel’s

questioning led to Victim’s admissions that (1) he did not really remember a lot about the events,

but was just telling it the way he assumed it had happened; (2) he had a lot of problems

remembering things; (3) some of his memories were not real; (4) he fabricated some details

because they “sounded good”; (5) he lied to his parents about Payne; and (6) he remembered only

three occurrences despite telling others that there were five. Trial counsel pointed out the various

discrepancies during closing argument and advised the jury, “[Victim] told you he lied numerous

times. If you can’t believe some things, you can’t believe any of it.” During the hearing on Payne’s

motion for new trial, the court indicated:

        [W]ith regard to the sufficiency of the evidence, the Court agrees with defendant
        that the list of inconsistencies and inaccuracies in the victim’s testimony as
        compared to, testimony before the jury as compared to previous statements, some
        made under oath, some not, is extensive, and probably the most extensive this
        Court’s ever encountered on the bench or prior to being on the bench.

        Before the close of evidence, upon learning that Payne did not intend to testify, the trial

court questioned Payne about his decision:


        2
          Section 566.062.1, RSMo 2000. All statutory citations are to the Revised Statutes of Missouri 2000, as
updated through the current Cumulative Supplement.


                                                       2
       THE COURT: All right. Mr. Payne, have you heard what your attorney’s told me?

       THE DEFENDANT: Yes, I have.

       THE COURT: It’s my understanding that you have decided not to testify in this
         trial, is that correct?

       THE DEFENDANT: Yes, sir.

       THE COURT: All right. Have you had enough time to discuss that with your
         attorney?

       THE DEFENDANT: I have.

       THE COURT: Have you had enough time to think about it on your own?

       THE DEFENDANT: Yes, sir.

       ...

       THE COURT: All right. Having had enough time to talk to your own attorney
         about it and to think about it on your own, it’s your decision to not testify in the
         case?

       THE DEFENDANT: Yes, sir.

       THE COURT: Do you understand that you have the right to testify?

       THE DEFENDANT: Yes, sir.

       ...

       THE COURT: Is there anything else you wish to tell me about that?

       THE DEFENDANT: No.

       Following the sentencing hearing, the trial court questioned Payne about counsel’s

representation:

       THE COURT: Do you have any complaints at all about how you’ve been
         represented?

       THE DEFENDANT: No.




                                                 3
        THE COURT: If so, you understand now’s the time to tell me. Do you understand
          that?

        THE DEFENDANT: Yeah.

        ...

        THE COURT: So other than the inability to find your sister and the other witnesses,
          are you telling the Court that you’re well satisfied with your representation?

        THE DEFENDANT: Yes.

        THE COURT: All right. The Court’s already made comment on the cross
          examination in the case. The Court believes that it was extraordinarily well
          done. The Court does find and believe that there is no probable cause to believe
          that you received ineffective assistance of counsel, that the trial counsel did an
          extraordinary job overall.

        Payne’s conviction and sentence were affirmed on direct appeal. Payne, 414 S.W.3d at 57.

He thereafter filed a pro se Rule 29.15 motion, which was amended by appointed counsel. Among

the claims asserted in the amended motion were claims that trial counsel provided ineffective

assistance in failing to further cross-examine Victim and in advising Payne not to testify. The

motion court held an evidentiary hearing, wherein it received testimony from both trial counsel

and Payne on the relevant claims.

        Trial counsel testified that Victim’s credibility was very important in the case and that her

goal in cross-examining him was “to discredit him and to show the jury that he was not reliable.”

Payne then presented counsel with three additional alleged inconsistencies in Victim’s testimony

and asked if she had any particular strategic reason for not introducing them.3 With each one,




         3
           Payne addressed seven additional alleged inconsistencies, but he presented evidence on only four, and one
of the four was not included in his amended motion and, therefore, was not properly before the motion court. The
alleged inconsistencies that Payne has preserved involve (1) whether Victim recognized that he was being subjected
to sexual abuse immediately or sometime later; (2) whether Payne physically moved Victim into position or whether
Victim moved himself in accordance with Payne’s commands; and (3) whether Victim knew Payne was removing his
own pants during the first incident.


                                                         4
counsel indicated that she did not have a strategic reason for not questioning Victim about those

specific inconsistencies.

       When asked about her advice to Payne not to testify, trial counsel indicated that they

decided together that his testimony was unnecessary:

       Q. What was your understanding of whether Phillip Payne wanted to testify?

       A. From what I remember, we of course discussed it. I always tell all of my clients
           that decision should be made after we hear all the State’s evidence so that we
           know what we’ve got, and then of course it’s always up to my client. In this
           case I don’t think he was real excited to get up on the stand, but if he felt he
           needed to, if we decided and again, it’s ultimately his decision, but if we talked
           about it and he needed to testify, he would.

       Q. Now well, okay. So what advice did you give to [Payne] about whether he
          should testify when that ultimate decision was being made?

       A. The ultimate decision was made after all of the State’s evidence. Due to
          [Victim]’s testimony, I did not think it was necessary for [Payne] to get up and
          say he didn’t do this. We were, we had put, he had pled not guilty. We were
          at a jury trial. Obviously he’s saying he didn’t do this. Again, [Victim]’s
          testimony was so all over the place and, I did not think, credible that I did tell
          [Payne], I don’t think you need to testify.

Trial counsel testified that she simply “didn’t see that it would help him to testify.”

       Payne then questioned trial counsel about whether she had considered using Payne’s prior

stealing and drug-related convictions to reinforce her argument that Payne had never been left

home alone with the children; trial counsel indicated that she had not. Payne also asked counsel

whether she had advised Payne of other sex cases where defendants had been convicted even

though the victims had recanted; again, trial counsel indicated she had not. Finally, Payne asked

counsel if she had prepared Payne to testify, and counsel indicated that she did not.

       Payne testified at the evidentiary hearing, indicating that he wished to testify at trial but

accepted trial counsel’s advice at the close of the State’s evidence that his testimony was

unnecessary. He further indicated that, if he had known his prior convictions could be used



                                                  5
favorably or that other defendants had been convicted on less evidence, he would have chosen to

testify.

           The motion court overruled Payne’s Rule 29.15 motion, finding that Payne had failed to

meet his burdens of proving both deficient performance or resulting prejudice. Payne appeals.

                                          Standard of Review

           “Appellate review of the denial of a Rule 29.15 motion is limited to a determination of

whether the findings of fact and conclusions of law of the motion court are clearly erroneous.”

Hays v. State, 484 S.W.3d 121, 126 (Mo. App. W.D. 2015). “The motion court’s findings and

conclusions are presumed to be correct.” Id. “To overturn the motion court’s judgment, the

appellate court must be left with a ‘definite and firm impression that a mistake has been made.’”

Id. (quoting Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)).

                                                Analysis

           Payne brings four claims on appeal. In Points I and II he argues that the motion court erred

in finding neither deficient performance (Point I) nor resulting prejudice (Point II) from counsel’s

failure to further cross-examine Victim. In Points III and IV, Payne argues that the motion court

erred in finding neither deficient performance (Point III) nor resulting prejudice (Point IV) from

counsel’s advice that Payne not testify at trial. We affirm.

           “To be entitled to post-conviction relief for ineffective assistance of counsel, the movant

must satisfy a two-prong test.” Id. (quoting Zink, 278 S.W.3d at 175). “First, the movant must

show that his counsel failed to exercise the level of skill and diligence that a reasonably competent

counsel would exercise in a similar situation.” Id. (quoting Zink, 278 S.W.3d at 175). “Second,

the movant must show that he was prejudiced by trial counsel’s failure.” Id. “Both of these prongs




                                                    6
must be shown by a preponderance of the evidence in order to prove ineffective assistance of

counsel.” Id. (quoting Zink, 278 S.W.3d at 175).

       “To meet the performance prong . . . , [a movant] must overcome a strong presumption that

trial counsel’s conduct was reasonable and effective.” Id. “To overcome this presumption, [the

movant] must point to specific acts or omissions of counsel that, in light of all the circumstances,

fell outside the wide range of professional competent assistance.” Id. (quoting Zink, 278 S.W.3d

at 176).

       “To satisfy the prejudice prong . . . , [a movant] must demonstrate that, absent the claimed

errors, there is a reasonable probability that the outcome would have been different.” Id. (quoting

Zink, 278 S.W.3d at 176). “If either the performance prong or the prejudice prong is not met, then

we need not consider the other . . . .” Id.

   A. Payne failed to demonstrate that counsel provided ineffective assistance in failing to
      further cross-examine Victim.

       In his first and second points, Payne argues that the motion court erred in not finding

counsel to be ineffective in failing to further cross-examine Victim with three additional alleged

inconsistencies. We disagree.

       “Counsel’s decision as to the extent of the impeachment of a witness is a matter of trial

strategy.” Laub v. State, 481 S.W.3d 579, 585 (Mo. App. S.D. 2015). “In virtually every case, the

extent of cross-examination must be left to the judgment of counsel.” Id. at 585-86 (quoting White

v. State, 939 S.W.2d 887, 897 (Mo. banc 1997)). “[T]rial counsel’s failure to impeach a witness,

without something more, does not warrant post-conviction relief.” Tucker v. State, 468 S.W.3d

468, 474 (Mo. App. E.D. 2015).

       Here, despite the extensive impeachment of Victim that trial counsel engaged in, Payne

has identified three additional areas of potential impeachment that trial counsel did not pursue: (1)



                                                 7
whether Victim recognized that he was being subjected to sexual abuse immediately or sometime

later; (2) whether Payne physically moved Victim into position or whether Victim moved himself

in accordance with Payne’s commands; and (3) whether Victim knew Payne was removing his

own pants during the first incident. Trial counsel indicated that she had no strategic reason for not

addressing these particular matters during cross-examination. But, despite trial counsel’s lack of

strategic reason as to these three specific areas of inquiry, trial counsel testified that her strategy

as a whole was “to discredit [Victim] and to show the jury that he was not reliable.” And the trial

court found counsel’s cross-examination to be “extraordinarily well done,” resulting in “the most

extensive [list of inconsistencies and inaccuracies in the victim’s testimony] this Court’s ever

encountered on the bench or prior to being on the bench.” Though the jury ultimately believed

Victim’s claim that Payne sodomized him, a strategy may not be deemed unreasonable merely

because it is unsuccessful. Sykes v. State, 372 S.W.3d 33, 42 (Mo. App. W.D. 2012) (holding that

the success or failure of a trial strategy “is not the measure of reasonable[ness]”).

       “Judicial scrutiny of counsel’s performance must be highly deferential” because “[i]t is all

too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse

sentence, and it is all too easy for a court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”

Strickland v. Washington, 466 U.S. 668, 689 (1984). “A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. “Intensive scrutiny of counsel and rigid requirements for acceptable

assistance could dampen the ardor and impair the independence of defense counsel, discourage the

acceptance of assigned cases, and undermine the trust between attorney and client.” Id. at 690.




                                                  8
         Payne’s argument that counsel should have presented additional impeachment evidence

amounts to nothing more than second-guessing counsel’s methods for carrying out her reasonable

trial strategy simply because his defense was ultimately unsuccessful. We find no error in the

motion court’s determination that Payne failed to meet his burden of proving that trial counsel

performed deficiently. Point I is denied.

         But even if counsel’s performance could be deemed deficient, Payne’s claim still does not

warrant relief because he has failed to prove any resulting prejudice from counsel’s alleged failure.

“If a prior inconsistent statement by a [S]tate’s witness does not give rise to a reasonable doubt as

to Movant’s guilt, such impeachment evidence is not the basis for a claim of ineffective assistance

of counsel.” Johnson v. State, 406 S.W.3d 892, 904 (Mo. banc 2013) (quoting State v. Twenter,

818 S.W.2d 628, 640 (Mo. banc 1991)). “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.” Thompson v. State, 437 S.W.3d 253, 263 (Mo. App. W.D.

2014).

         Payne argues that the motion court’s prejudice analysis erroneously determined that the

case was not a close one. Though we would agree with Payne that cases such as his, where the

evidence largely consists solely of a victim’s word against the defendant’s, are generally

considered “close” ones, Payne mischaracterizes the motion court’s determination. In response to

Payne’s claim that “this was an exceptionally close case,” the motion court determined that the

jury apparently did not find the case to be close in light of the facts that it still convicted Payne

despite counsel’s extensive cross-examination and impeachment of Victim, it did so after a

relatively brief deliberation, and there was no indication that any of the jurors struggled with that

determination. Thus, contrary to Payne’s argument, the motion court did not indicate that this was




                                                 9
not a close case; rather, the motion court determined that the jury obviously did not feel it was a

close case.

         In any event, Payne fails to demonstrate how any of the areas of inquiry he relies on would

have provided him with a defense or changed the outcome of the trial, had counsel raised them.

As discussed previously, trial counsel was able to elicit admissions from Victim that his memory

was not good, that some of his memories were false, and that some of them were even fabricated

to “sound good.” If this information did not discredit Victim in the juror’s minds, we find it

extremely unlikely that the additional areas of inquiry (none of which addressed any elements of

the charged crime) would have made any difference.4 Point II is denied.

    B. Payne failed to prove that counsel provided ineffective assistance in advising Payne
       not to testify.

         In his third and fourth points, Payne argues that trial counsel provided ineffective assistance

in advising Payne not to testify in his own defense. Again, we disagree.

         “The decision whether or not to place a defendant in the witness chair is a difficult one.”

Meuir v. State, 182 S.W.3d 788, 793 (Mo. App. S.D. 2006). “It has been repeatedly held that[,]

when a criminal defendant has knowingly and voluntarily waived his right to testify, absent

extraordinary circumstances, an ineffective assistance of counsel claim will not lie in defense

counsel’s decision not to call him as a witness.” Id. “‘[A]lthough the decision to testify rests

solely with the defendant, a defendant is entitled to receive reasonably competent advice’



         4
           In arguing that he was prejudiced, Payne relies heavily on Black v. State, 151 S.W.3d 49, 56 (Mo. banc
2004). In Black, the Missouri Supreme Court found that the defendant was prejudiced by his counsel’s failure to
address prior inconsistent statements of the State’s witnesses during cross-examination. Id. But, unlike the statements
Payne relies on, the statements at issue in Black “related directly to the central issue of whether Mr. Black acted with
deliberation or in a fit of rage or out of self-defense.” Id. In other words, they went directly to one of the elements of
the charged crime (the mental state), which “was the key issue in contention between the parties” and would have
provided the defendant with a viable defense to the charge. Id. Here, nothing in the alleged inconsistencies that Payne
has identified either addresses an element of the charged crime or would have provided him with a viable defense.
Thus, Black does not support his claim.


                                                           10
regarding his decision to testify.” Blair v. State, 402 S.W.3d 131, 139 (Mo. App. W.D. 2013)

(quoting Hurst v. State, 301 S.W.3d 112, 118 (Mo. App. E.D. 2010)). “Therefore, ‘trial counsel’s

advice whether to testify is [generally] a matter of trial strategy, and does not constitute a ground

for post-conviction relief, absent exceptional circumstances.’” Id. (quoting Hickey v. State, 328

S.W.3d 225, 231 (Mo. App. E.D. 2010)).

       Here, Payne acknowledges that he knowingly and voluntarily waived his right to testify,

but he claims that he did so based upon advice from trial counsel, which he claims was

unreasonable insofar as the basis for counsel’s advice was unreasonable. The motion court found

that trial counsel’s advice was based upon three premises: (1) at the close of the State’s evidence,

she believed the State’s case was weak and Payne’s testimony was unnecessary; (2) any testimony

from Payne denying the charges would have been cumulative to his entry of a not guilty plea; and

(3) if he had testified, his prior convictions would have been put before the jury. The motion court

therefore concluded that counsel’s advice was based upon reasonable trial strategy. We agree.

       To begin, as discussed in response to Payne’s first point on appeal, trial counsel thoroughly

impeached Victim by pointing out numerous inconsistencies in his description of events, and she

successfully elicited detrimental admissions from Victim regarding those same descriptions. Thus,

at the close of the State’s evidence, it was entirely reasonable for counsel to determine that the

State’s case had been sufficiently weakened so as to render Payne’s testimony unnecessary,

especially where that testimony would have consisted primarily of denying the charges. Payne

argues that counsel should have cited specific cases to Payne where defendants were convicted on

less evidence. He further claims that his testimonial denials would have had a greater effect on

the jury than his decision to plead not guilty. We find these claims to be merely another attempt

to second-guess trial counsel’s strategic decision. “Reasonable choices of trial strategy, no matter




                                                 11
how ill[-]fated they appear in hindsight, cannot serve as a basis for a claim of ineffective

assistance.” Meuir, 182 S.W.3d at 793 (quoting Worthington v. State, 166 S.W.3d 566, 573 (Mo.

banc 2005)).

       Finally, Payne faults counsel for relying on the fact that his prior convictions would have

come before the jury, had he testified. But counsel’s advice that Payne not testify in order to avoid

revealing his prior convictions constitutes reasonable trial strategy. See Morrison v. State, 75

S.W.3d 893, 897 (Mo. App. S.D. 2002) (holding that trial counsel’s advice that the defendant not

testify to avoid revealing prior convictions was reasonable trial strategy).

       Payne argues that his prior convictions—none of which involved sexual matters—could

have been used to his advantage. Though this may have been an option, counsel’s advice to the

contrary is not rendered unreasonable merely because another potential strategy existed. “There

are countless ways to provide effective assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at

689.

       In any event, trial counsel testified that, when discussing the possibility of Payne testifying

at trial, she did not believe “he was real excited to get up on the stand.” Therefore, they decided

to evaluate the case at the close of the State’s evidence before deciding whether his testimony was

needed. “The reasonableness of counsel’s actions may be determined or substantially influenced

by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly,

on informed strategic choices made by the defendant and on information supplied by the

defendant.” Strickland, 466 U.S. at 691. It was wholly reasonable for counsel to advise Payne not

to testify where he had already exhibited reluctance to do so and the two of them concluded that

his testimony was unnecessary. Point III is denied.




                                                 12
       In any event, “[e]ven if the movant did not receive competent advice, he or she must still

prove prejudice.” Franklin v. State, 156 S.W.3d 507, 512 (Mo. App. S.D. 2005). “There must be

a reasonable probability that if movant would have testified, the result of the proceeding would

have been different.” Id.

       Payne argues that, if he had testified, the jury would have been able to assess his credibility

and could have come down on the other side of this “close case.” This claim, however, is nothing

more than speculation, as it does not demonstrate any reason why the jurors would have found

Payne more credible than Victim, whom they believed despite significant impeachment. The

jurors could have just as easily found Payne’s testimony to be incredible, thus solidifying their

conclusion as to his guilt. “Mere conclusory speculations of prejudice by Movant are not

considered substantive evidence of counsel’s ineffectiveness.” Woods v. State, 458 S.W.3d 352,

360 (Mo. App. W.D. 2014) (quoting Weekley v. State, 265 S.W.3d 319, 323 (Mo. App. S.D. 2008)).

Point IV is denied.

                                            Conclusion

       Payne has failed to demonstrate that the motion court’s judgment was clearly erroneous.

Therefore, its decision is affirmed.




                                              Karen King Mitchell, Judge

Lisa White Hardwick, Presiding Judge, and
Anthony Rex Gabbert, Judge, concur.




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