IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT ANTHONY BALBIRNIE, ) ) Appellant, ) WD84667 v. ) ) OPINION FILED: ) August 2, 2022 STATE OF MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Cooper County, Missouri The Honorable Donald Barnes, Judge
Before Division Two: Thomas N. Chapman, Presiding Judge, and Mark D. Pfeiffer and Edward R. Ardini, Jr., Judges
Mr. Anthony Balbirnie (“Balbirnie”) appeals from the judgment of the Circuit Court of
Cooper County, Missouri (“motion court”), denying his Rule 29.15 post-conviction relief motion
after an evidentiary hearing. We affirm.
Factual and Procedural Background1
Victim,2 who was born July 19, 1997, lived with her grandparents on their farm in Willard,
Missouri.3 On September 20, 2012, around 4:00 p.m., Victim walked off the farm after she became
1 On appeal from the motion court’s denial of a Rule 29.15 motion, we view the facts in the light most favorable to the verdict and judgment. McFadden v. State, 553 S.W.3d 289, 296 n.2 (Mo. banc 2018). 2 Pursuant to section 595.226.1 RSMo 2016, we have used the term “Victim” to protect the identity of the victim of an offense under Chapter 566. 3 Many of the underlying facts are taken directly from the opinion issued by this Court in Balbirnie’s direct appeal, State v. Balbirnie, 541 S.W.3d 702 (Mo. App. W.D. 2018), without further attribution. upset with her grandmother. Grandmother was unconcerned initially but grew worried when she
discovered that Victim was still gone the next morning. Grandmother attempted to locate Victim
through multiple means, including contacting local law enforcement, calling people that knew
Victim, and posting “missing person” fliers.
Richard Chamberlain, who lived approximately five miles from Willard in Springfield,
Missouri, encountered Victim just before 6:00 p.m. on September 20, 2012. Victim stopped at
Chamberlain’s home and asked to use his phone, and Chamberlain obliged. Chamberlain had
never seen Victim before but believed that she appeared to be fourteen or fifteen years old. Victim
used the phone briefly before handing it back to Chamberlain, stating that whomever she was
trying to reach was not answering. Victim then left Chamberlain’s home. Shortly thereafter,
Chamberlain received a phone call from the number Victim had tried to reach; it was a male voice.
The man asked who had tried to contact him, and Chamberlain advised that it had been a young
lady. The caller asked Chamberlain where he was located and which direction Victim had gone.
The phone number was later identified as belonging to Balbirnie.
Sometime before Victim disappeared, Glenda Bradshaw (a friend of Balbirnie) received a
call from Balbirnie requesting that she provide a ride to him in her vehicle. When Bradshaw picked
up Balbirnie, Victim, whom Bradshaw had never met, was with him. Bradshaw asked Victim how
old she was; Victim stated that she was nineteen, but Balbirnie indicated that she was twenty-one.
Bradshaw took Balbirnie and Victim to a friend’s house, where Balbirnie and Victim “friended”
each other on Facebook. Victim’s Facebook page indicated that she was fifteen years old.
Around 2:00 a.m. on September 21, 2012, Larry Warner (another friend of Balbirnie)
picked up Balbirnie and Victim in Springfield and drove them to Amy Hartley’s house in Buffalo,
Missouri, for the purpose of “partying,” which Warner defined as doing drugs and having sex.
2 Though Warner had never met Victim, he recalled Balbirnie mentioning her before, indicating that
they had a sexual relationship.
When they arrived at Hartley’s house, Balbirnie introduced Victim to Hartley and told
Hartley that Victim was twenty-two years old. Victim asked Hartley to borrow a dress; Victim
then took a shower. When Victim got out of the shower, she went to the back bedroom where she
and Balbirnie engaged in sexual activities. At some point, Balbirnie emerged from the bedroom,
naked and with an erection, and invited Warner into the bedroom to watch; Warner declined the
invitation and left Hartley’s house shortly thereafter. After Warner left, Hartley went to her own
bedroom. Balbirnie and Victim, both naked, then entered Hartley’s bedroom and solicited Hartley
to participate in sexual activities with them. Hartley allowed Balbirnie and Victim to perform oral
sex on her, but Hartley soon became uncomfortable and went back into the living room. Hartley
later directed Balbirnie and Victim out of her bedroom to the living room, then eventually from
the living room to the back bedroom. Hartley then retired to her bedroom.
Sometime later, Hartley heard a loud noise and left her room to investigate. She saw
Balbirnie pacing in and out of the back bedroom, wearing only shorts and looking “frazzled.”
When Hartley entered the room, she saw Victim lying naked on the bed, shaking and seizing.
Hartley approached Victim and asked if she was all right. Victim put her hands around her neck,
“like she was choking,” while she continued to shake and seize. Hartley told Balbirnie to call for
an ambulance, but Balbirnie responded, “Fuck no, bitch.” Hartley insisted that they call, telling
Balbirnie that Victim was dying, but Balbirnie refused. Victim eventually stopped shaking and
seizing, and Hartley checked her pulse and found that she had none. Hartley told Balbirnie to give
Victim cardio-pulmonary resuscitation (“CPR”), and when he did, Victim’s body convulsed and
water came out of her mouth. The CPR was unsuccessful, and Victim became still and
3 unresponsive. Hartley asked Balbirnie, “What have you done?” Balbirnie responded, “She’s been
doing that for hours.” Balbirnie told Hartley, “We need to douche this bitch out” because he had
ejaculated inside Victim.
Balbirnie redressed Victim in the dress that she borrowed from Hartley, then wrapped
Victim’s body in a blanket from the bed, and asked Hartley to get him some tape and a rope or
cord. Hartley complied and brought Balbirnie a white trash bag, some tape, and an orange
electrical cord. Balbirnie put the trash bag over Victim’s head and then wrapped the cord around
the blanket to keep it in place. Balbirnie carried Victim’s body to the garage and put it in the trunk
of Hartley’s car. He then directed Hartley to “get [him] something to weight her down.” Hartley
suggested that Balbirnie look in the sheds outside the house. Balbirnie returned from one of the
sheds with a post-driver and a piece of railroad track, which he tied to Victim’s body before
instructing Hartley to get in the car. The two then drove around, looking for a body of water.
On September 30, 2012, Victim’s body was found floating in Truman Lake in Warsaw,
Missouri, near Mile Long Bridge; it was wrapped in a blanket with tape, zip ties, and orange
electrical cord, with a white trash bag over Victim’s face, and attached to a post-driver and part of
a railroad iron rail.
Balbirnie and Hartley eventually returned to Hartley’s home, where Balbirnie gathered up
Victim’s clothing, put it in a trash bag, and drove away with the items in Hartley’s car. Before
doing so, however, Balbirnie requested some bleach and used it to wipe down the bed where
Victim had died. Balbirnie also advised Hartley to wash the bedding and not to call the police.
A few days later, Balbirnie was in a motel room, using drugs with Kayla Alexander in
Springfield, Missouri. Balbirnie was behaving abnormally, prompting Alexander to ask him what
4 was going on. Balbirnie then said that he had gotten high and had sex with a fifteen-year-old girl,
during which he choked and killed her.
After a change of venue from the Circuit Court of Benton County, Balbirnie was later
charged in the Circuit Court of Cooper County with second-degree/felony murder (Count I),
second-degree statutory rape (Count II), tampering with physical evidence (Count III), and
abandonment of a corpse (Count IV). A jury trial commenced on June 20, 2016, at the conclusion
of which the jury found Balbirnie guilty as charged. Balbirnie was thereafter sentenced to thirty
years to life for Count I, fifteen years for Count II, five years for Count III, and five years for
Count IV; Counts I and II to run consecutive and Counts III and IV to run concurrent but
consecutive to Counts I and II. Balbirnie appealed, and this Court affirmed the judgment in State
v. Balbirnie, 541 S.W.3d 702, 713 (Mo. App. W.D. 2018), concluding that “there was abundant
evidence” of Balbirnie’s guilt, including but not limited to, his admission to Ms. Alexander that
he had sex with a fifteen-year-old, during which he had choked and killed her.
Thereafter, Balbirnie timely filed his pro se Rule 29.15 motion for post-conviction relief,
and appointed counsel timely filed an amended motion. An evidentiary hearing was held on
March 17, 2021, wherein Balbirnie appeared in person and was represented by counsel. On
June 10, 2021, the motion court denied Balbirnie’s claims for post-conviction relief in a
twenty-eight-page judgment outlining the motion court’s findings of fact and conclusions of law.
Balbirnie now appeals. Additional facts relevant to the resolution of the issues on appeal
will be discussed below.
Standard of Review
Appellate review of the denial of a post-conviction motion is limited to a determination of
whether the motion court’s findings of facts and conclusions of law are clearly erroneous. Haynes
5 v. State, 600 S.W.3d 859, 861-62 (Mo. App. W.D. 2020); see also Rule 29.15(k). “A motion
court’s findings and conclusions are clearly erroneous if this Court ‘is left with the definite and
firm impression that a mistake has been made’ after a review of the entire record.” Propst v. State,
535 S.W.3d 733, 735 (Mo. banc 2017) (citing Price v. State, 422 S.W.3d 292, 294 (Mo. banc
2014)). “Regardless of the motion court’s findings and conclusions in denying the motion, we
will affirm the motion court’s decision if sustainable for any reason.” Morrison v. State, 619
S.W.3d 605, 609 (Mo. App. W.D. 2021) (citing Dorsey v. State, 448 S.W.3d 276, 282 (Mo. banc
2014)).
Analysis
Point I
In Balbirnie’s first point on appeal, he contends that the motion court clearly erred in
denying his post-conviction relief motion in that he claims the State committed a Brady4 violation
when it failed to disclose statements that Hartley made to her probation officer that would have
assisted Balbirnie’s impeachment of Hartley as one of the State’s witnesses at his criminal trial.
Hartley was originally charged as a co-defendant with Balbirnie, though she pleaded guilty
to first-degree endangering a child and was sentenced to five years’ imprisonment. The execution
of Hartley’s sentence was suspended, and she was instead placed on five years’ probation
beginning in 2016. Hartley was already serving a term of probation in an unrelated case when she
was charged in the present case. Balbirnie’s trial counsel sought to obtain the probation records
in Hartley’s unrelated case, including any violation reports, by serving upon the prosecution team
a discovery request. But, those records were neither in the possession of the prosecution team nor
were the records available in a database accessible to the prosecution team. Nonetheless, the
4 Brady v. Maryland, 373 U.S. 83 (1963).
6 prosecution team contacted the Department of Probation and Parole and requested the records, and
the Department refused to produce the requested records. The prosecution team then informed
trial counsel that they did not possess, nor did they have access to, Hartley’s probation records.
Trial counsel thereafter subpoenaed the Department of Probation and Parole to a deposition to
retrieve Hartley’s probation records, but the Department again refused to submit to the subpoena.
In response, trial counsel filed a motion to compel, which was also successfully rebuffed by the
Department of Probation and Parole. Of relevance to this discussion is section 559.125.2:5
Information and data obtained by a probation or parole officer shall be privileged information and shall not be receivable in any court. Such information shall not be disclosed directly or indirectly to anyone other than the members of a parole board and the judge entitled to receive reports, except the court or the board may in its discretion permit the inspection of [a] report, or parts of such report, by the defendant, or offender or his attorney, or other person having a proper interest therein.
(Emphasis added.) In short, the Department of Probation and Parole was not under any obligation
to permit Balbirnie to inspect Hartley’s probation records.6
“Under Brady v. Maryland, due process is violated when the prosecutor suppresses
evidence that is favorable to the defendant and material to either guilt or punishment.” State v.
Mosely, 599 S.W.3d 236, 247 (Mo. App. W.D. 2020) (internal quotation marks omitted).
Accordingly:
[t]o prevail on his Brady claim, [Balbirnie] must show that: (1) the evidence at issue is favorable to him either because it is exculpatory or impeaching; (2) the evidence was, either willfully or inadvertently, suppressed by the state; and (3) he suffered prejudice as a result of the state’s suppression.
5 All statutory references are to the REVISED STATUTES OF MISSOURI 2000, as updated through the 2015 Noncumulative Supplement. 6 Conversely, information obtained by and a probationer’s communications with a probation officer would be admissible in a proceeding to determine a probationer’s eligibility to remain on probation, see generally section 559.036, or in a criminal prosecution where the “communications or information . . . themselves constitute[d] the commission of a criminal offense,” State ex rel. Jones v. Prokes, 637 S.W.3d 110, 118 (Mo. App. W.D. 2021). Here, however, Hartley’s communications with her probation officer do not fit within these categories.
7 State ex rel. Clemons v. Larkins, 475 S.W.3d 60, 78 (Mo. banc 2015) (citing State ex rel.
Woodworth v. Denney, 396 S.W.3d 330, 338 (Mo. banc 2013)).
Here, there simply was no suppression of evidence by the prosecution team of probation
and parole records that were, at all times, confidential pursuant to section 559.125. This issue has
been ruled upon by Missouri’s appellate courts in the recent past, to-wit:
[I]n Williams v. State, 168 S.W.3d 433 (Mo. banc 2005), the Missouri Supreme Court held that a trial court did not err in denying a capital-murder defendant’s request for disclosure of probation and parole records of two prosecution witnesses who testified that the defendant had made incriminating statements to them. Although the defendant was facing the death penalty and sought information concerning two of the State’s primary witnesses against him, the Supreme Court held that the defendant was not entitled to discovery because “the probation and parole records are confidential under section 559.125, RSMo 2000”). Id. at 445.
State v. Renfrow, 495 S.W.3d 840, 843 (Mo. App. W.D. 2016). The Missouri Supreme Court’s
holding in Williams is applicable to and binding on our decision today. Consequently, Hartley’s
probation records were privileged under section 559.125.2, Balbirnie was not entitled to obtain
them through discovery, and the motion court’s conclusion in denying Balbirnie’s post-conviction
relief motion on this ground was not clearly erroneous.7
Point I is denied.
Ineffective Assistance of Counsel Claims on Appeal – Points II-VI
In Points II through VI, Balbirnie asserts various claims of ineffective assistance of
counsel. We note that the record before us shows that Balbirnie was represented by three attorneys
7 Additionally, Hartley’s probation records were not material to Balbirnie’s defense, and the absence of such evidence does not undermine confidence in the jury’s verdict; hence, Balbirnie has not suffered prejudice. For, in the probation records at issue, Hartley responded to a question about the rape of the Balbirnie Victim by saying, “No, I didn’t even touch her.” But, Balbirnie’s trial counsel was able to artfully and extensively cross-examine Hartley about her even broader denial statement to police investigators that she “didn’t have anything to do with [the events regarding what happened to Victim before and after her rape and subsequent death].” See Kyles v. Whitley, 514 U.S. 419, 434 (1995) (“The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different result is accordingly shown when the government’s [alleged] evidentiary suppression ‘undermines confidence in the outcome of the trial.’”).
8 at trial who collectively devoted over 900 hours of time preparing his defense for trial and
executing the defense strategy at trial. Balbirnie’s lead trial counsel had tried between thirty and
forty criminal jury trials in her career and she had taught trial skills for the Public Defender system
for many years. Further, the second chair trial counsel for Balbirnie had been a trial attorney for
the Public Defender system for over thirty years, had conducted seventy jury trials as the first-chair
attorney and participated in 140 jury trials in his extensive career.
To prevail on a claim of ineffectiveness of counsel, Balbirnie must satisfy, by a
preponderance of the evidence, both the Strickland performance and prejudice prongs. Strickland
v. Washington, 466 U.S. 668, 687 (1984); Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019);
West v. State, 605 S.W.3d 607, 612 (Mo. App. W.D. 2020). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
To show deficient performance, Balbirnie “must overcome the strong presumption [that]
trial counsel’s conduct was reasonable and effective,” Anderson v. State, 564 S.W.3d 592, 600
(Mo. banc 2018), by proving “‘that counsel’s performance fell below an objective standard of
reasonableness.’” McNeal v. State, 500 S.W.3d 841, 844 (Mo. banc 2016) (quoting Taylor v. State,
382 S.W.3d 78, 80 (Mo. banc 2012)). The choice of one reasonable strategy over another is not
ineffective assistance of counsel. McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012).
“‘Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot
serve as a basis for a claim of ineffective assistance.’” Cunningham v. State, 640 S.W.3d 807, 810
(Mo. App. W.D. 2022) (quoting Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019)).
9 To prove prejudice, Balbirnie must show “that a reasonable probability exists that ‘but for’
counsel’s errors the proceeding would have had a different result.” Fields v. State, 642 S.W.3d
774, 779 (Mo. App. W.D. 2022). “If either the performance prong or the prejudice prong is not
met, then [we] need not consider the other, and [Balbirnie’s] claim must fail.” Jindra v. State, 580
S.W.3d 635, 641 (Mo. App. W.D. 2019) (internal quotation marks omitted).
On the topic of the Strickland prejudice prong, the evidence of Balbirnie’s guilt is
overwhelming. Balbirnie’s friend, Kayla Alexander, testified that she spent time with Balbirnie
shortly after Victim’s rape and murder, and Balbirnie admitted to Alexander that he had sex with
a fifteen-year-old girl, the sex had been rough and included Balbirnie choking her, and the violent
sex had resulted in the death of the fifteen-year-old girl. Balbirnie’s phone is the one that had
called Richard Chamberlain searching for Victim on the date of her disappearance. Another friend
of Balbirnie, Glenda Bradshaw, picked up Balbirnie on the same date and personally observed that
Victim was with Balbirnie at that time. Balbirnie’s friend, Larry Warner, then drove Balbirnie and
Victim to Amy Hartley’s home in Buffalo, Missouri, for the express purpose of “doing drugs and
having sex.” Hartley admitted to participating in inappropriate sex acts with Balbirnie and Victim,
but when she later found Victim in the back bedroom with Balbirnie naked, convulsing, and
choking, Balbirnie refused her demand that he call emergency personnel. And, upon Victim’s
death, he instructed Hartley to “douche this bitch out” because he had ejaculated inside her. He
then instructed Hartley to assist him in his attempt to hide and decompose Victim’s corpse by
wrapping Victim with weighted material and throwing her over a bridge into Truman Lake.
Balbirnie’s cell phone records also placed him in the area where, and at the time when, Victim
became unresponsive and died. And, Balbirnie’s cell phone was mysteriously turned off during
the time Hartley claims she and Balbirnie were attempting to destroy evidence. Based upon these
10 facts, Balbirnie simply cannot satisfy the prejudice prong on any of his ineffective assistance of
counsel claims and, hence, all of his ineffective assistance of counsel claims must fail. That said,
we briefly comment on the Strickland performance prong claims of Balbirnie’s Points II-VI.
In Point II, Balbirnie asserts an ineffectiveness claim due to trial counsel’s failure to
cross-examine Warner about his cell phone records. The gist of Balbirnie’s argument is that he
could not have thrown Victim’s body into Truman Lake between 5:45-6:15 a.m. as suggested by
the State’s witnesses because Warner’s cell phone records, which were admitted at trial, showed
that he left Buffalo at 5:51 a.m. on September 21, 2012, and Victim was “alive” when Warner left
Buffalo. First, though Warner testified that the last time he saw Victim she was alive, he did not
testify that he saw her alive at 5:51 a.m. Second, the cell phone records were in evidence, and trial
counsel used that evidence to make the very argument in closing argument that Balbirnie asserts
should have been made, and trial counsel did not subject the defense to the possible trap that
Warner may not have known if Victim was still alive when he left (had he been questioned on that
topic). Third, though it is Balbirnie’s burden of proving what Warner would have testified to in
the post-conviction relief evidentiary hearing, Balbirnie presented no such evidence. See Fields v.
State, 625 S.W.3d 479, 482 (Mo. App. W.D. 2021) (“Failure to present evidence at a hearing in
support of factual claims in a post-conviction motion constitutes abandonment of that claim.”).
Fourth, the defense strategy was to cast Warner as a liar in every way, and trial counsel did not
want to overshadow that strategy with the notion that Warner would sometimes be telling the truth,
at least if the testimony was helpful to the defense. See Beck v. State, 637 S.W.3d 545, 555 (Mo.
App. W.D. 2021) (stating that a strategic decision to pursue one reasonable trial strategy to the
exclusion of another equally reasonable trial strategy will not serve as a basis for holding that
counsel was ineffective). Finally, “[w]hen the testimony of a witness will only impeach the State’s
11 witness, relief on a claim of ineffective assistance of counsel is not warranted.” Rios v. State, 368
S.W.3d 301, 309 (Mo. App. W.D. 2012) (internal quotation marks omitted). Balbirnie has failed
to meet the Strickland performance prong as to Point II.
In Point III, Balbirnie asserts an ineffectiveness claim due to trial counsel’s failure to
cross-examine Warner as to why his cell phone number allegedly appeared on Victim’s Facebook
page on September 15, 2012, when Warner had testified that he did not know Victim before
September 20, 2012. First, it is not this Court’s responsibility to search the record for facts
supporting contentions made by Balbirnie on appeal, State v. Smith, 33 S.W.3d 648, 652 (Mo.
App. W.D. 2000), but our thorough review of the record shows no evidence whatsoever that
Warner’s cell phone number appeared on Victim’s Facebook page at any time. Second, although
a leading question by motion counsel may have suggested that Warner’s cell phone number
appeared on Victim’s Facebook page, it is a fundamental rule of evidence that “[a] question is not
evidence.” Storey v. State, 175 S.W.3d 116, 153 (Mo. banc 2005). Third, a “[f]ailure to present
evidence at a hearing in support of factual claims in a post-conviction motion constitutes
abandonment of that claim.” Fields, 625 S.W.3d at 482 (internal quotation marks omitted).
Balbirnie has failed to meet the Strickland performance prong as to Point III.
In Point IV, Balbirnie asserts an ineffectiveness claim due to trial counsel’s failure to object
to Warner’s testimony at trial that Victim did not deserve what happened to her. “Decisions about
whether or when to make objections at trial are left to the judgment of counsel.” Hays v. State,
484 S.W.3d 121, 128 (Mo. App. W.D. 2015) (internal quotation marks omitted). “[T]he mere
failure to object to everything objectionable[ ] does not equate to incompetence.” Wickizer v.
State, 617 S.W.3d 885, 889 (Mo. App. W.D. 2021) (internal quotation marks omitted). “In many
instances[,] seasoned trial counsel do not object to otherwise improper questions or arguments for
12 strategic purposes.” Id. (internal quotation marks omitted). “Trial strategy decisions may be a
basis for finding ineffective assistance of counsel only if that decision was unreasonable.”
Thompson v. State, 606 S.W.3d 679, 682 (Mo. App. W.D. 2020) (quoting Anderson, 564 S.W.3d
at 600). Here, trial counsel did not want to highlight Warner’s testimony by objecting to it, and
that decision was sound and reasonable. Balbirnie has failed to meet the Strickland prejudice
prong as to Point IV.
In Point V, Balbirnie asserts an ineffectiveness claim due to trial counsel’s failure to
cross-examine Warner about Warner’s alleged prior assault on another woman, A.T.8 The incident
involving A.T. is wholly unrelated to the events surrounding the rape and tragic death of Victim
in the present case. “‘Evidence is logically relevant if it tends to make the existence of a material
fact more or less probable.’” State v. Hudson, 643 S.W.3d 679, 685 (Mo. App. W.D. 2022)
(quoting State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002)). Warner’s alleged assault on
A.T. did not have the legitimate tendency to establish either Warner’s or Balbirnie’s guilt or
innocence in the murder of Victim, nor did it have the legitimate tendency to make any other fact
or consequence in this case more or less likely. “Logically relevant evidence is admissible only if
legally relevant. Legal relevance weighs the probative value of the evidence against its costs—
unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
cumulativeness.” Id. (quoting Anderson, 76 S.W.3d at 276). Introducing any evidence about
Warner’s alleged assault on A.T. would have had the serious tendency to confuse the issues and
mislead the jury; Balbirnie was on trial for the crimes he committed against Victim, Warner was
not on trial for the crimes he allegedly committed against A.T. 9 “Trial counsel will not be found
8 Though A.T. is not the victim in these proceedings, we nevertheless respectfully decline to disclose any identifying information about her. 9 The doctrine of curative admissibility, or “opening the door,” as it is commonly termed, “‘allows a party to explore otherwise inadmissible evidence on cross-examination when the opposing party has made unfair prejudicial
13 ineffective for failing to present inadmissible evidence.” Tisius v. State, 519 S.W.3d 413, 422
(Mo. banc 2017). Balbirnie has failed to meet the Strickland prejudice prong as to Point V.
In Point VI, Balbirnie asserts an ineffectiveness claim due to trial counsel’s failure to
cross-examine Victim’s grandmother for allegedly reporting to the prosecution team that Victim’s
Facebook page identified Victim as seventeen years old, and not fifteen as Balbirnie’s friend,
Glenda Bradshaw, had testified the Facebook page showed. First, at the post-conviction relief
evidentiary hearing, Victim’s grandmother testified that she didn’t even know how to use
Facebook and, hence, never would have made a false assertion about Victim’s Facebook page
showing an age that the grandmother would have known to be inaccurate. And, the motion court,
as it is expressly entitled to do, determined that the Victim’s grandmother was credible. Lane v.
State, 644 S.W.3d 1, 3 (Mo. App. W.D. 2022) (stating that the motion court assesses credibility of
the witnesses). Second, trial counsel expressly noted that the trial strategy with Victim’s
grandmother at trial was to be respectful of her and to have her exit the witness stand as soon as
possible, since she was the most likeable witness that the State would call in the criminal trial; this
trial strategy was eminently reasonable and, as we discussed previously in relation to our
discussion of Point IV, we will not convict trial counsel of pursuing one reasonable trial strategy
to the exclusion of another equally reasonable trial strategy. See also Payne v. State, 509 S.W.3d
830, 837 (Mo. App. W.D. 2016) (explaining that movant’s argument that trial counsel should have
conducted additional cross-examination of the State’s witness “amounts to nothing more than
second-guessing counsel’s methods for carrying out [their] reasonable trial strategy simply
use of related evidence on direct examination.’” Barnett v. State, 103 S.W.3d 765, 773 n.5 (Mo. banc 2003) (emphasis added) (quoting United States v. Durham, 868 F.2d 1010, 1012 (8th Cir. 1989)); see also State v. Betts, 559 S.W.3d 47, 58 (Mo. App. E.D. 2018) (quoting State v. Shockley, 410 S.W.3d 179, 194 (Mo. banc 2013)). What Warner was asked by the police, what he told the police, and Victim’s blameworthiness was not in any way related to Warner’s potentially criminal conduct against a person that was not the victim, a witness, or the defendant in this case. Hence, we will not permit Balbirnie to bootstrap his argument for admissibility of inadmissible evidence by attempting to characterize it as “curative admissibility.”
14 because his defense was ultimately unsuccessful”). Third, as we detailed in Balbirnie, 541 S.W.3d
at 713, Balbirnie’s own inconsistent accounts of Victim’s age to Bradshaw and Hartley and his
admission to Alexander that Victim was fifteen years old, are such that the complaint that he raises
today simply does not unqualifiedly support a defense strategy that Balbirnie thought that Victim
was an adult. “Trial counsel is not ineffective for not offering evidence that would not have
unqualifiedly supported the defense theory.” Collings v. State, 543 S.W.3d 1, 17 (Mo. banc 2018).
Similarly,
[f]ailure to impeach a witness does not generally warrant relief for ineffective assistance of counsel where the facts, even if true, do not establish a defense. The decision to impeach is presumed to be a matter of trial strategy, and to overcome such presumption, a movant must demonstrate that the decision was not a matter of trial strategy and that the impeachment would have provided him with a defense or would have changed the outcome of the trial.
Kelley v. State, 618 S.W.3d 722, 740 (Mo. App. W.D. 2021) (quoting Wren v. State, 313 S.W.3d
211, 219 (Mo. App. E.D. 2010)). Balbirnie has failed to meet the Strickland performance prong
as to Point VI.
Because Balbirnie can satisfy neither the Strickland performance or prejudice prongs on
any of his claims of ineffectiveness of counsel asserted in his Points II through VI, all of those
points on appeal are denied.
Point VII
In Balbirnie’s seventh and final point on appeal, he contends that the motion court clearly
erred in denying his post-conviction relief motion in that the State knowingly presented false and
misleading evidence at trial. Specifically, Balbirnie asserts that the State knew Bradshaw’s
testimony that Victim’s Facebook page identified Victim as fifteen years old was false because
Grandmother previously informed the prosecutor that Victim’s Facebook page identified Victim
as seventeen years old.
15 “To prevail on this theory, [Balbirnie] must show (1) the witness’[s] testimony was false;
(2) the [S]tate knew it was false; and (3) the conviction was obtained as a result of the perjured
testimony.” Ferguson v. State, 325 S.W.3d 400, 407 (Mo. App. W.D. 2010) (internal quotation
marks omitted). Balbirnie cannot demonstrate any of the elements required to prevail on his claim.
There is no evidence that Bradshaw testified falsely about the age she saw on Victim’s
Facebook page. And, Victim’s grandmother testified credibly at the evidentiary hearing that she
did not have personal knowledge of Victim’s Facebook page to enable her to give an accurate
account of its contents. And, once more, Balbirnie failed to prove that Victim’s Facebook page,
in fact, identified her as anything other than fifteen years old as Bradshaw testified. Thus,
Balbirnie cannot meet the first element identified by Ferguson. And, if there is no proof that
Bradshaw testified falsely, there can be no proof that the State “knew” her testimony was false;
therefore, Balbirnie cannot meet the second element identified by Ferguson. Finally, Balbirnie’s
conviction was obtained as a result of the overwhelming evidence of his guilt discussed previously
in our ruling today and not as the result of any alleged perjured testimony; hence, the third element
identified by Ferguson has not been established by Balbirnie.
Point VII is denied.
Conclusion
The findings and conclusions of the motion court itemized in its twenty-eight-page
judgment below are clear, cogent, thorough, and legally correct and certainly not clearly erroneous.
Accordingly, we affirm.
/s/Mark D. Pfeiffer Mark D. Pfeiffer, Judge
Thomas N. Chapman, Presiding Judge, and Edward R. Ardini, Jr., Judge, concur.