Hilliard v. State

550 S.W.3d 130
CourtMissouri Court of Appeals
DecidedMay 15, 2018
DocketED 105437
StatusPublished
Cited by1 cases

This text of 550 S.W.3d 130 (Hilliard v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hilliard v. State, 550 S.W.3d 130 (Mo. Ct. App. 2018).

Opinion

Gary M. Gaertner, Jr., Presiding Judge

Introduction

Gregory Hilliard (Movant) appeals from the motion court's judgment denying his motion under Rule 29.151 for post-conviction relief after an evidentiary hearing. We affirm.

Factual and Procedural Background

A jury convicted Movant of one count of first-degree statutory rape of a child less than twelve years old, in violation of Section 566.032.2 The conviction stemmed from the following facts. Movant was dating the victim's mother. In 2010, it was discovered that the victim, age nine, had a sexually transmitted disease (STD), trichomonas vaginalis (trichomonas). In her first interview with a St. Louis Child Advocacy Center worker, the victim denied that *132Movant had touched her inappropriately, but in a later interview with police, the victim disclosed that Movant raped her and had threatened to kill her if she told anyone. The trial court sentenced Movant as a prior offender to a term of twenty years. This Court affirmed Movant's conviction and sentence on appeal. State v. Hilliard, 414 S.W.3d 576 (Mo. App. E.D. 2013).

Movant timely filed a Rule 29.15 motion. The motion court appointed counsel, who filed an amended motion.3 In his amended motion, Movant asserted that his trial counsel was ineffective for, inter alia , preventing Movant from testifying at trial in his own defense. At an evidentiary hearing on the motion, Movant testified that he wanted to testify, but trial counsel advised Movant he would not need to because the medical records would exonerate him, in that the medical records would demonstrate Movant did not have the same STD as the victim. After the trial court then excluded the medical records, Movant wanted to testify but counsel advised Movant not to testify because of his "past history." Movant stated he would have testified at trial that he never had any sexual contact with the victim. Movant agreed that when the trial court asked if he wanted to testify, he said he was not going to.

As well, Daniel Rousseau (Rousseau) testified that he represented Movant at trial. His initial trial strategy was to submit the medical records to clear Movant, until he discovered the medical records did not include a reliable test for the STD at issue, which is difficult to test in men, in that men can be carriers of the disease without testing positive. At that point, his trial defense became that the victim had initially denied any sexual contact with Movant. Rousseau discussed the change in trial strategy with Movant. Rousseau stated Movant's testimony was not vital to either theory. Rousseau did not recall specifically discussing with Movant whether Movant should testify, but he would have informed Movant that testifying might not be in his best interest because it would leave him open to cross-examination from the State. On cross-examination, the State refreshed Rousseau's memory that prior to the trial the State had provided him with or informed him of a police report of a 2009 accusation of sexual assault against Movant that could have been problematic for Movant if he testified. Rousseau stated his understanding was that Movant did not want to testify.

The motion court denied Movant's request for relief under Rule 29.15, finding the claim without merit in that Rousseau provided reasonable advice not to testify in line with a reasonable trial strategy and that Movant made the final decision not to testify. This appeal follows.

Standard of Review

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). The motion court's findings of fact and conclusions of law are clearly erroneous only if the reviewing court, having examined the entire record, is left with the definite and firm *133impression that a mistake has been made. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009).

For relief based on claims of ineffective assistance of counsel, Movant must show by a preponderance of the evidence both that his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and that his counsel's deficient performance prejudiced him. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). We "presume[ ] that counsel's conduct was reasonable and effective," and that any challenged action was part of counsel's reasonable trial strategy. Anderson, 196 S.W.3d at 33 ; see also Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003).

Discussion

In his sole point on appeal, Movant contends the motion court erred in denying post-conviction relief after an evidentiary hearing because his trial counsel was ineffective for persuading Movant not to testify. He asserts his testimony would have both established he and the victim's mother, J.R., were sexually active during the time of the alleged rape but J.R. did not have trichomonas, and also would have corroborated the victim's initial statement that Movant did not rape her. We disagree.

Counsel is obligated to provide a defendant with "reasonably competent" advice regarding whether or not to testify, and we will not deem that advice ineffective if it might be considered a sound trial strategy. See Rousan v. State, 48 S.W.3d 576, 585 (Mo. banc 2001). Matters of trial strategy are "virtually unchallengeable" in ineffective-assistance claims. Williams v. State, 168 S.W.3d 433, 443 (Mo. banc 2005).

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Bluebook (online)
550 S.W.3d 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilliard-v-state-moctapp-2018.