In the Missouri Court of Appeals Eastern District DIVISION THREE
JOHN T. HAIDUL, ) No. ED99319 ) Appellant, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) STATE OF MISSOURI, ) Honorable Nancy Schneider ) Respondent. ) Filed: February 11, 2014
I. INTRODUCTION
John T. Haidul (“Movant”) appeals the judgment of the motion court denying his
Rule 29.15 1 motion for post-conviction relief after an evidentiary hearing. Movant
argues the motion court erred in denying his claim that trial counsel was ineffective for
failing to call David Holt (“Holt”) as a witness at trial. We find that the motion court’s
findings of fact and conclusions of law are not clearly erroneous and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The State charged Movant with first-degree robbery. The trial court conducted a
jury trial. At trial, the State presented testimony from a Commerce Bank teller who
stated that in September 2007 a man she later identified as Movant entered the bank and
presented her with a note reading, “This is a robbery. I have a gun. Give me all your
1 All rule references are to the Missouri Court Rules (2013). money.” The teller testified that she complied with the demand, and Movant left the
bank with the cash.
Security camera footage of the robbery, which was broadcast on the evening
news, was admitted into evidence and shown to the jury. Movant’s babysitter testified
that she recognized Movant from images on a news channel’s website and called the
police. The babysitter further recounted that she showed the footage to Movant’s wife,
who began crying and responded, “Oh, my God, that’s [Movant].”
The State also presented the testimony of a City of Florissant police officer who
stated that Movant was placed under arrest, confessed to committing the crime, and
prepared a written statement to that effect. Movant’s written confession was admitted
into evidence.
Movant testified on his behalf at trial and during cross-examination claimed to be
at lunch with a friend named David Holt (“Holt”) at the time of the robbery. Movant
acknowledged that Holt would not be testifying. The jury found Movant guilty of first-
degree robbery. The trial court sentenced Movant to a term of twenty years’
imprisonment. On appeal, this Court affirmed the judgment. State v. Haidul, 334
S.W.3d 920 (Mo. App. E.D. 2011).
Movant filed a motion for post-conviction relief, asserting that his counsel was
ineffective for failing to call Holt as a witness at trial. More specifically, Movant claimed
that counsel’s failure to call Holt was not reasonable trial strategy because Holt’s
testimony would have provided Movant with a defense by corroborating his alibi for the
time and date of the charged offense.
2 The motion court held an evidentiary hearing. Movant’s trial counsel testified at
the hearing as follows:
Q: [D]id [Movant] talk to you about a witness named David Holt? A: He talked to me about – he talked to me about a person, a friend of his that he was supposedly having lunch with on the day of the robbery. Q: So you say supposedly having lunch with at that time, did you have any reason to doubt that what he was saying was not correct? A: [H]e told me, and I reviewed my notes also, that [Holt] wasn’t certain what day he did have lunch with him. So, he said there was uncertainty about it. ... Q And did [Movant] ask you to contact [Holt]? A: He didn’t have contact information for him. . . . I didn’t even know his last name was Holt.
Counsel further explained on cross-examination that she did not call Holt as a witness
because “[Holt was] uncertain, according to [Movant], [so he] would really have not been
a good witness to present.”
Holt also testified at the evidentiary hearing. Holt explained that Movant called
him from the Clayton jail to ask if he remembered going to lunch with Movant on the
Monday of the robbery. Holt testified as follows about their phone conversation:
[Holt]: I said, John, we really shouldn’t be talking about this. You are being taped. And he insisted. I said, John, if you want me to tell you what I remembered, I invited you to lunch on Monday, you said you were doing something and we went to lunch the next day. Q: How did he respond? [Holt]: He insisted I need to keep thinking about it.
The motion court denied the motion. In its judgment, the court explained that
even if Holt’s testimony had been presented at trial, it “would not have changed the result
of the trial . . . [but] would have . . . given the State more evidence that Movant had no
alibi for the time of the [r]obbery.” Movant appeals.
3 III. STANDARD OF REVIEW
We review the denial of a motion for post-conviction relief to determine whether
the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule
29.15(k). The motion court’s findings of fact and conclusions of law are presumed
correct and deemed clearly erroneous only if, after reviewing the entire record, we are left
with a firm impression that a mistake has been made. Forrest v. State, 290 S.W.3d 704,
708 (Mo. banc 2009).
IV. DISCUSSION
In his sole point on appeal Movant contends that the motion court erred in
denying his claim that trial counsel was ineffective for failing to call Holt as a witness at
trial. Specifically, Movant argues that trial counsel’s failure to call Holt was not
reasonable trial strategy because Holt’s testimony would have provided Movant with a
defense by corroborating his alibi at the time of the robbery. We disagree.
To succeed in a post-conviction claim for ineffective assistance of counsel, a
movant must demonstrate 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 deficient performance prejudiced him. Smith v.
State, 370 S.W.3d 883, 885 (Mo. banc 2012); Strickland v. Washington, 466 U.S. 668,
687 (1984). To satisfy the first prong of the test, a movant “must overcome a strong
presumption that counsel’s conduct was reasonable and effective” by pointing to
“specific acts or omissions of counsel that, in light of all the circumstances, fell outside
the wide range of professional competent assistance.” Smith, 370 S.W.3d at 886
(quotation omitted). To satisfy the prejudice prong, a movant must show that “absent the
4 claimed errors, there is a reasonable probability that the outcome would have been
different.” Smith, 370 S.W.3d at 886.
“To prevail on a claim of ineffective assistance of counsel for failure to call a
witness, a defendant must show that: (1) trial counsel knew or should have known of the
existence of the witness; (2) the witness could be located through reasonable
investigation; (3) the witness would testify; and (4) the witness’s testimony would have
produced a viable defense.” Williams v. State, 168 S.W.3d 433, 441 (Mo. banc 2005).
Counsel's decision to not call a witness is presumptively a matter of trial strategy and will
not support a claim of ineffective assistance of counsel unless the defendant clearly
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In the Missouri Court of Appeals Eastern District DIVISION THREE
JOHN T. HAIDUL, ) No. ED99319 ) Appellant, ) Appeal from the Circuit Court ) of St. Charles County vs. ) ) STATE OF MISSOURI, ) Honorable Nancy Schneider ) Respondent. ) Filed: February 11, 2014
I. INTRODUCTION
John T. Haidul (“Movant”) appeals the judgment of the motion court denying his
Rule 29.15 1 motion for post-conviction relief after an evidentiary hearing. Movant
argues the motion court erred in denying his claim that trial counsel was ineffective for
failing to call David Holt (“Holt”) as a witness at trial. We find that the motion court’s
findings of fact and conclusions of law are not clearly erroneous and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The State charged Movant with first-degree robbery. The trial court conducted a
jury trial. At trial, the State presented testimony from a Commerce Bank teller who
stated that in September 2007 a man she later identified as Movant entered the bank and
presented her with a note reading, “This is a robbery. I have a gun. Give me all your
1 All rule references are to the Missouri Court Rules (2013). money.” The teller testified that she complied with the demand, and Movant left the
bank with the cash.
Security camera footage of the robbery, which was broadcast on the evening
news, was admitted into evidence and shown to the jury. Movant’s babysitter testified
that she recognized Movant from images on a news channel’s website and called the
police. The babysitter further recounted that she showed the footage to Movant’s wife,
who began crying and responded, “Oh, my God, that’s [Movant].”
The State also presented the testimony of a City of Florissant police officer who
stated that Movant was placed under arrest, confessed to committing the crime, and
prepared a written statement to that effect. Movant’s written confession was admitted
into evidence.
Movant testified on his behalf at trial and during cross-examination claimed to be
at lunch with a friend named David Holt (“Holt”) at the time of the robbery. Movant
acknowledged that Holt would not be testifying. The jury found Movant guilty of first-
degree robbery. The trial court sentenced Movant to a term of twenty years’
imprisonment. On appeal, this Court affirmed the judgment. State v. Haidul, 334
S.W.3d 920 (Mo. App. E.D. 2011).
Movant filed a motion for post-conviction relief, asserting that his counsel was
ineffective for failing to call Holt as a witness at trial. More specifically, Movant claimed
that counsel’s failure to call Holt was not reasonable trial strategy because Holt’s
testimony would have provided Movant with a defense by corroborating his alibi for the
time and date of the charged offense.
2 The motion court held an evidentiary hearing. Movant’s trial counsel testified at
the hearing as follows:
Q: [D]id [Movant] talk to you about a witness named David Holt? A: He talked to me about – he talked to me about a person, a friend of his that he was supposedly having lunch with on the day of the robbery. Q: So you say supposedly having lunch with at that time, did you have any reason to doubt that what he was saying was not correct? A: [H]e told me, and I reviewed my notes also, that [Holt] wasn’t certain what day he did have lunch with him. So, he said there was uncertainty about it. ... Q And did [Movant] ask you to contact [Holt]? A: He didn’t have contact information for him. . . . I didn’t even know his last name was Holt.
Counsel further explained on cross-examination that she did not call Holt as a witness
because “[Holt was] uncertain, according to [Movant], [so he] would really have not been
a good witness to present.”
Holt also testified at the evidentiary hearing. Holt explained that Movant called
him from the Clayton jail to ask if he remembered going to lunch with Movant on the
Monday of the robbery. Holt testified as follows about their phone conversation:
[Holt]: I said, John, we really shouldn’t be talking about this. You are being taped. And he insisted. I said, John, if you want me to tell you what I remembered, I invited you to lunch on Monday, you said you were doing something and we went to lunch the next day. Q: How did he respond? [Holt]: He insisted I need to keep thinking about it.
The motion court denied the motion. In its judgment, the court explained that
even if Holt’s testimony had been presented at trial, it “would not have changed the result
of the trial . . . [but] would have . . . given the State more evidence that Movant had no
alibi for the time of the [r]obbery.” Movant appeals.
3 III. STANDARD OF REVIEW
We review the denial of a motion for post-conviction relief to determine whether
the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule
29.15(k). The motion court’s findings of fact and conclusions of law are presumed
correct and deemed clearly erroneous only if, after reviewing the entire record, we are left
with a firm impression that a mistake has been made. Forrest v. State, 290 S.W.3d 704,
708 (Mo. banc 2009).
IV. DISCUSSION
In his sole point on appeal Movant contends that the motion court erred in
denying his claim that trial counsel was ineffective for failing to call Holt as a witness at
trial. Specifically, Movant argues that trial counsel’s failure to call Holt was not
reasonable trial strategy because Holt’s testimony would have provided Movant with a
defense by corroborating his alibi at the time of the robbery. We disagree.
To succeed in a post-conviction claim for ineffective assistance of counsel, a
movant must demonstrate 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 deficient performance prejudiced him. Smith v.
State, 370 S.W.3d 883, 885 (Mo. banc 2012); Strickland v. Washington, 466 U.S. 668,
687 (1984). To satisfy the first prong of the test, a movant “must overcome a strong
presumption that counsel’s conduct was reasonable and effective” by pointing to
“specific acts or omissions of counsel that, in light of all the circumstances, fell outside
the wide range of professional competent assistance.” Smith, 370 S.W.3d at 886
(quotation omitted). To satisfy the prejudice prong, a movant must show that “absent the
4 claimed errors, there is a reasonable probability that the outcome would have been
different.” Smith, 370 S.W.3d at 886.
“To prevail on a claim of ineffective assistance of counsel for failure to call a
witness, a defendant must show that: (1) trial counsel knew or should have known of the
existence of the witness; (2) the witness could be located through reasonable
investigation; (3) the witness would testify; and (4) the witness’s testimony would have
produced a viable defense.” Williams v. State, 168 S.W.3d 433, 441 (Mo. banc 2005).
Counsel's decision to not call a witness is presumptively a matter of trial strategy and will
not support a claim of ineffective assistance of counsel unless the defendant clearly
establishes otherwise. Id. A decision not to call witnesses to testify, as a matter of trial
strategy, is virtually unchallengeable. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc
1992).
At the post-conviction hearing, both trial counsel and Holt testified. Trial counsel
explained that she did not consider Holt a good witness because Movant informed her
that Holt was uncertain about whether he had lunch with Movant on the day of the
robbery. In addition, Holt testified that he asked Movant to lunch on the Monday of the
robbery, but Movant told him that he was doing something. Holt stated that he and
Movant went to lunch on the following day.
Here, Movant does not establish ineffective assistance of counsel for failure to
call a witness because he does not show that the “witness’s testimony would have
produced a viable defense.” Williams, 168 S.W.3d at 441. We find that Movant fails to
meet this required element as Holt’s testimony at the evidentiary hearing does not
5 corroborate Movant’s alibi. Instead, Holt’s testimony that Movant declined his lunch
invitation undermines Movant’s alibi and his defense.
We also find that Movant does not establish that his trial counsel employed
unreasonable trial strategy. Counsel testified that she did not consider Holt a good
witness because of the uncertainty surrounding his potential testimony. Counsel also
indicated that Movant did not tell her Holt’s last name or ask her to contact him. In light
of counsel’s explanation and the strong presumption that a decision to not call a witness
is a matter of trial strategy, we do not find that Movant has shown that his counsel’s
performance was deficient under the first prong of Strickland v. Washington.
Moreover, Movant does not show that counsel’s failure to call Holt prejudiced his
defense, as is required under the second prong of Strickland. Holt’s testimony at the
evidentiary hearing would not have supported Movant’s alibi, but would have been
detrimental to his defense. Additionally, we note that the State’s case against Movant
was strong. The State presented overwhelming evidence of Movant’s guilt: the jury saw
security camera footage of the robbery, heard from eyewitnesses, and learned Movant
had confessed to the crime. As such, we find that Movant did not suffer any prejudice
and the result of the proceeding would not have been different had Holt testified. Point I
is denied.
6 V. CONCLUSION
The judgment of the motion court is affirmed.
________________________________
Angela Quigless, Judge
Mary K. Hoff, P.J., and Kurt S. Odenwald, J., Concurs.