In the Missouri Court of Appeals Eastern District
DIVISION FOUR
MONTRELL MOORE, ) No. ED99996 ) Movant/Appellant, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) STATE OF MISSOURI, ) Honorable Thomas J. Frawley ) Respondent. ) Filed: May 13, 2014
Introduction
Montrell Moore (Movant) appeals the denial of his Rule 29.15 motion for post-
conviction relief from his convictions and sentences for second-degree murder, child
abuse resulting in death, endangering the welfare of a child, possession of a controlled
substance, possession of marijuana, and possession of drug paraphernalia. Movant
claims his trial counsel was ineffective for: (1) failing to call a witness at trial; and (2)
failing to elicit testimony from the emergency room physician and medical examiner that
someone other than Movant could have caused the child’s injuries. We affirm. Factual Background
Viewed in the light most favorable to the verdict, the evidence shows that in June
2009, Movant was living with his girlfriend, L.C., and her two children, S.B. (age 2) and
R.W., (age 9)1 at an apartment complex in the City of St. Louis. On the evening of June
26, 2009, L.C.’s sister, T.C. (age 15) was staying overnight at the apartment to help care
for S.B. After giving S.B. a bath, L.C. took him downstairs around 11:00 p.m. where he
slept on a sectional couch. L.C. did not notice any unusual marks or injuries on S.B.
when she gave him a bath, nor did he fall or have any accidents while in her care. During
the night, L.C. heard S.B. whining so she went downstairs to check on him and saw that
Movant was in the kitchen. At that point, Movant stated, “there ain’t nothing wrong with
that little n---er.” L.C. and Movant exchanged words before going back upstairs to sleep.
At around 3:00 a.m., T.C. went to sleep on the couch at the opposite end of where S.B.
was sleeping. Around the same time, S.B. woke up and was “fussy” and “loud,” so T.C.
turned on the television for a while. Around 4 a.m., S.B. fell back asleep on the couch.
T.C. also went back to sleep.
L.C. got up around 4:30 a.m. to get ready for work. L.C. tucked in S.B., who
looked at her, and she told him to go back to sleep. As she was leaving for work around
5:00 a.m., L.C. briefly woke up T.C. to remind her to buy milk for S.B. L.C. left for
work and T.C. went back to sleep and did not awaken until hearing knocks at the door
when paramedics arrived. Around 8:00 a.m., Movant called L.C. at work to notify her
that S.B. had been taken to the emergency room because “his face was peeling.” L.C. left
1 R.W. was staying at her grandmother’s home on the day in question.
2 work and headed to the hospital. Movant told L.C. that he had found S.B. “drinking
Fabuloso,” a cleaning fluid. Upon arrival at the hospital, S.B. was not breathing and in
complete cardiopulmonary arrest. The emergency room physician on duty that morning,
Dr. Parisa Jamshidi, found a burn on S.B.’s face that was consistent with scalding and
immersion under a “very hot liquid.” There was no indication that S.B. had ingested or
spilled a chemical cleaning fluid on himself. S.B. had no burns inside of his mouth or in
his eyes. Dr. Jamshidi indicated that S.B. was most likely not conscious when he
sustained the burn injury. Dr. Jamshidi also found a bruise on S.B.’s face and “very large
bruises” in the shape of “hand prints,” “finger marks,” and “fist marks” on the lateral side
of S.B.’s upper trunk along the rib cage.
When hospital personnel informed Movant that S.B. could not be revived, Movant
began hitting the walls and saying that he “was sorry” and he “didn’t mean to do
anything.” By the time L.C. arrived at the hospital, S.B. had already died. At that point,
L.C. hit Movant and asked him what he did to her son. Movant said that he was “sorry”
and that he “didn’t do anything.” Movant initially told L.C. that S.B. was running the
water in the tub when Movant found him. However, Movant told police that after
hearing a loud noise, he found S.B. motionless at the bottom of the stairs. Movant also
told police that S.B. had knocked a television off of an upstairs dresser. After police
informed Movant that his explanations were not consistent with the facts and S.B.’s
injuries, Movant admitted that he had struck S.B. “back and forth” several times with the
inside and outside of his hand. He later wrote an apology letter to L.C. from jail, stating
3 that he “was sorry.” Movant also admitted that he fabricated the stories about how S.B.
was injured.
The medical examiner, Dr. Raj Nanduri, found that S.B. had sustained a blunt
injury on his forehead, contusions that caused a bruise inside his lip, and bruises on top of
his head. Dr. Nanduri determined that the burn on S.B.’s face was sustained around the
time of his death and that it was consistent with a scalding injury caused by immersion,
and not from a chemical cleaning fluid. S.B. also had hemorrhaging under the skin on his
head, bruising of the chest wall, extensive hemorrhaging underneath the skin on his
sides, three broken ribs on his left side, and two broken ribs on his right side. The broken
ribs on both sides were pushed inward and had punctured his lungs. He had bruising on
his heart, a large tear in the liver, a lacerated spleen, and a bruised and lacerated kidney.
The cause of death was determined to be abdominal blunt force trauma.
Movant was charged by indictment with first-degree murder (Count I),2 abuse of a
child resulting in death (Count II), endangering the welfare of a child in the first degree
(Count III), possession of a controlled substance (Count IV),3 possession of marijuana
(Count V), and possession of drug paraphernalia (Count VI). The matter was tried to a
jury and Movant was found guilty of second-degree murder and all remaining counts.
The trial court sentenced Movant to life imprisonment on Counts I and II, and seven
years’ imprisonment on Counts III and IV, to run consecutively. Movant was sentenced
2 Count one of the indictment also charged Movant, in the alternative, with second-degree murder. The jury was instructed on both first-degree and second-degree murder. 3 The drug-related charges stemmed from a search of the apartment during which police discovered marijuana, heroin, and drug paraphernalia.
4 to one-year terms on Counts V and VI, to run concurrently with each other and the
sentences for Counts I through IV.
On direct appeal, this Court affirmed Movant’s convictions and sentences in State
v. Moore, 354 S.W.3d 257 (Mo. App. E.D. 2011). Movant subsequently filed a pro se
Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended
motion alleging, inter alia, that counsel was ineffective for: (1) failing to call a witness at
trial; and (2) failing to elicit testimony from the emergency room physician and medical
examiner that someone other than Movant could have caused S.B.’s injuries. After an
evidentiary hearing, the motion court issued its judgment, denying post-conviction relief.
Movant appeals.
Standard of Review
Appellate review of the denial of a Rule 29.15 motion is limited to a determination
of whether the motion court’s findings of fact and conclusions of law are clearly
erroneous. Zink v. State, 278 S.W.3d 170
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In the Missouri Court of Appeals Eastern District
DIVISION FOUR
MONTRELL MOORE, ) No. ED99996 ) Movant/Appellant, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) STATE OF MISSOURI, ) Honorable Thomas J. Frawley ) Respondent. ) Filed: May 13, 2014
Introduction
Montrell Moore (Movant) appeals the denial of his Rule 29.15 motion for post-
conviction relief from his convictions and sentences for second-degree murder, child
abuse resulting in death, endangering the welfare of a child, possession of a controlled
substance, possession of marijuana, and possession of drug paraphernalia. Movant
claims his trial counsel was ineffective for: (1) failing to call a witness at trial; and (2)
failing to elicit testimony from the emergency room physician and medical examiner that
someone other than Movant could have caused the child’s injuries. We affirm. Factual Background
Viewed in the light most favorable to the verdict, the evidence shows that in June
2009, Movant was living with his girlfriend, L.C., and her two children, S.B. (age 2) and
R.W., (age 9)1 at an apartment complex in the City of St. Louis. On the evening of June
26, 2009, L.C.’s sister, T.C. (age 15) was staying overnight at the apartment to help care
for S.B. After giving S.B. a bath, L.C. took him downstairs around 11:00 p.m. where he
slept on a sectional couch. L.C. did not notice any unusual marks or injuries on S.B.
when she gave him a bath, nor did he fall or have any accidents while in her care. During
the night, L.C. heard S.B. whining so she went downstairs to check on him and saw that
Movant was in the kitchen. At that point, Movant stated, “there ain’t nothing wrong with
that little n---er.” L.C. and Movant exchanged words before going back upstairs to sleep.
At around 3:00 a.m., T.C. went to sleep on the couch at the opposite end of where S.B.
was sleeping. Around the same time, S.B. woke up and was “fussy” and “loud,” so T.C.
turned on the television for a while. Around 4 a.m., S.B. fell back asleep on the couch.
T.C. also went back to sleep.
L.C. got up around 4:30 a.m. to get ready for work. L.C. tucked in S.B., who
looked at her, and she told him to go back to sleep. As she was leaving for work around
5:00 a.m., L.C. briefly woke up T.C. to remind her to buy milk for S.B. L.C. left for
work and T.C. went back to sleep and did not awaken until hearing knocks at the door
when paramedics arrived. Around 8:00 a.m., Movant called L.C. at work to notify her
that S.B. had been taken to the emergency room because “his face was peeling.” L.C. left
1 R.W. was staying at her grandmother’s home on the day in question.
2 work and headed to the hospital. Movant told L.C. that he had found S.B. “drinking
Fabuloso,” a cleaning fluid. Upon arrival at the hospital, S.B. was not breathing and in
complete cardiopulmonary arrest. The emergency room physician on duty that morning,
Dr. Parisa Jamshidi, found a burn on S.B.’s face that was consistent with scalding and
immersion under a “very hot liquid.” There was no indication that S.B. had ingested or
spilled a chemical cleaning fluid on himself. S.B. had no burns inside of his mouth or in
his eyes. Dr. Jamshidi indicated that S.B. was most likely not conscious when he
sustained the burn injury. Dr. Jamshidi also found a bruise on S.B.’s face and “very large
bruises” in the shape of “hand prints,” “finger marks,” and “fist marks” on the lateral side
of S.B.’s upper trunk along the rib cage.
When hospital personnel informed Movant that S.B. could not be revived, Movant
began hitting the walls and saying that he “was sorry” and he “didn’t mean to do
anything.” By the time L.C. arrived at the hospital, S.B. had already died. At that point,
L.C. hit Movant and asked him what he did to her son. Movant said that he was “sorry”
and that he “didn’t do anything.” Movant initially told L.C. that S.B. was running the
water in the tub when Movant found him. However, Movant told police that after
hearing a loud noise, he found S.B. motionless at the bottom of the stairs. Movant also
told police that S.B. had knocked a television off of an upstairs dresser. After police
informed Movant that his explanations were not consistent with the facts and S.B.’s
injuries, Movant admitted that he had struck S.B. “back and forth” several times with the
inside and outside of his hand. He later wrote an apology letter to L.C. from jail, stating
3 that he “was sorry.” Movant also admitted that he fabricated the stories about how S.B.
was injured.
The medical examiner, Dr. Raj Nanduri, found that S.B. had sustained a blunt
injury on his forehead, contusions that caused a bruise inside his lip, and bruises on top of
his head. Dr. Nanduri determined that the burn on S.B.’s face was sustained around the
time of his death and that it was consistent with a scalding injury caused by immersion,
and not from a chemical cleaning fluid. S.B. also had hemorrhaging under the skin on his
head, bruising of the chest wall, extensive hemorrhaging underneath the skin on his
sides, three broken ribs on his left side, and two broken ribs on his right side. The broken
ribs on both sides were pushed inward and had punctured his lungs. He had bruising on
his heart, a large tear in the liver, a lacerated spleen, and a bruised and lacerated kidney.
The cause of death was determined to be abdominal blunt force trauma.
Movant was charged by indictment with first-degree murder (Count I),2 abuse of a
child resulting in death (Count II), endangering the welfare of a child in the first degree
(Count III), possession of a controlled substance (Count IV),3 possession of marijuana
(Count V), and possession of drug paraphernalia (Count VI). The matter was tried to a
jury and Movant was found guilty of second-degree murder and all remaining counts.
The trial court sentenced Movant to life imprisonment on Counts I and II, and seven
years’ imprisonment on Counts III and IV, to run consecutively. Movant was sentenced
2 Count one of the indictment also charged Movant, in the alternative, with second-degree murder. The jury was instructed on both first-degree and second-degree murder. 3 The drug-related charges stemmed from a search of the apartment during which police discovered marijuana, heroin, and drug paraphernalia.
4 to one-year terms on Counts V and VI, to run concurrently with each other and the
sentences for Counts I through IV.
On direct appeal, this Court affirmed Movant’s convictions and sentences in State
v. Moore, 354 S.W.3d 257 (Mo. App. E.D. 2011). Movant subsequently filed a pro se
Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended
motion alleging, inter alia, that counsel was ineffective for: (1) failing to call a witness at
trial; and (2) failing to elicit testimony from the emergency room physician and medical
examiner that someone other than Movant could have caused S.B.’s injuries. After an
evidentiary hearing, the motion court issued its judgment, denying post-conviction relief.
Movant appeals.
Standard of Review
Appellate review of the denial of a Rule 29.15 motion is limited to a determination
of whether the motion court’s findings of fact and conclusions of law are clearly
erroneous. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The motion court’s
judgment is clearly erroneous if, after a review of the record, we are left with the definite
and firm impression that a mistake has been made. Worthington v. State, 166 S.W.3d
566, 572 (Mo. banc 2005). The motion court’s findings are presumed correct. Id. We
defer to the motion court’s determinations regarding witness credibility. Sanchez v.
State, 330 S.W.3d 847, 850 (Mo. App. S.D. 2011).
To establish ineffective assistance of counsel, the movant must prove by a
preponderance of the evidence that: (1) counsel failed to exercise the level of skill and
diligence of a reasonably competent attorney; and (2) that he was thereby prejudiced.
5 Zink, 278 S.W.3d at 175 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). To
show prejudice, the movant must show that but for counsel’s errors, there is a reasonable
probability that the outcome would have been different. Zink, 278 S.W.3d at 176.
Discussion
Point I: Failure to Call Witness at Trial
In his first point, Movant contends that his trial counsel was ineffective for failing
to call Tayrean Smith to testify as a defense witness at trial. Movant claims that Smith
would have testified that he never saw Movant interact inappropriately with S.B, that he
was at Movant’s residence on a daily basis, that Movant encouraged S.B. and played
games with him, and that Smith never witnessed Movant physically disciplining S.B.
Movant claims this evidence would have contradicted R.W.’s and T.C.’s testimony that
Movant had a propensity to harm S.B. and that S.B. was afraid of Movant.4
To prevail on a claim of ineffective assistance for failure to call a witness, the
movant 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 have testified; and 4) the witness’s testimony would have provided a
viable defense. Worthington, 166 S.W.3d at 577. Counsel’s decision not to call a
witness is presumptively a matter of trial strategy and will not support a claim of
ineffectiveness unless the movant clearly establishes otherwise. Id. If a potential
4 At trial, L.C.’s daughter, R.W., testified that she had observed Movant strike S.B. on numerous occasions when L.C. was not home. T.C. testified that S.B. was afraid of Movant and would “start whining” and run when Movant was at the apartment.
6 witness’s testimony would not unqualifiedly support the defendant’s case, the failure to
call the witness does not constitute ineffective assistance. Id.
“The reasonableness of investigation decisions depends critically on the
information supplied by the defendant.” Hufford v. State, 201 S.W.3d 533, 539 (Mo.
App. S.D. 2006) (quoting Strickland, 466 U.S. at 691). Movant claims that counsel’s
attempt to contact Smith was not reasonable because counsel allegedly incorrectly
transcribed the last digit of the phone number provided by Movant.
At the evidentiary hearing, trial counsel testified by deposition that he tried to
contact Smith at the phone number provided by Movant but was unable to reach him.
Counsel said that when he informed Movant that he was unable to reach Smith at that
number, Movant provided another phone number, which turned out to be a wrong
number. Counsel also attempted to obtain Smith’s home address but was unsuccessful.
Movant provided no additional information to assist counsel in locating Smith.
Movant testified that he gave Smith’s phone number to counsel and that counsel
informed him that he was unable to reach Smith. Movant acknowledged that he did not
provide his attorney with any additional information to help locate Smith. Movant also
acknowledged that he was aware that Smith was in the courtroom during his trial but
Movant did not inform counsel of Smith’s presence. Movant also admitted that he had
lied to his attorney about what happened.
Smith also testified at the evidentiary hearing. Smith said that in the months
preceding Movant’s crimes, he lived in the same apartment complex as Movant, that he
never saw Movant hit S.B., and that S.B. did not appear to be afraid of Movant. Smith
7 said that he did not know T.C. or R.W. Smith also indicated that he was not at L.C.’s
apartment during the time that S.B. sustained his injuries.
In its order denying post-conviction relief, the motion court found that Smith had
“no credibility.” The motion court further found that Smith’s proposed testimony would
not have unqualifiedly supported the defense’s case because Smith was not present at the
scene because he worked during the day and stayed at his girlfriend’s home at night.
The motion court’s findings are supported by the record. The record clearly shows
that counsel made a diligent effort and used reasonable means to contact Smith. After
counsel informed Movant that he was unable to reach Smith, Movant provided no
additional information to assist counsel in locating Smith. Movant also fails to explain
why he did not inform counsel that Smith was present in the courtroom on the day of
trial.
In any event, Movant fails to demonstrate that Smith’s testimony would have
provided a viable defense. See Williams v. State, 168 S.W.3d 433, 442 (Mo. banc 2005).
Smith admitted that he was not present at Movant’s apartment during the time that S.B.
sustained his fatal injuries. Moreover, there was strong evidence of Movant’s guilt,
including the medical testimony and physical evidence. Movant was the only adult in the
apartment with S.B. at the time he sustained his fatal injuries. Movant admitted to police
that he struck S.B. and that he fabricated stories to explain what happened to S.B.
Movant said that he was “sorry” and “didn’t mean to do anything.” There was also
evidence that Movant had struck S.B. on previous occasions. On one occasion, Movant
punched S.B. in the stomach with enough force causing S.B. to throw up.
8 Given the overwhelming evidence of Movant’s guilt, there is no reasonable
probability that the jury would have reached a different outcome had Smith testified. See
Bucklew v. State, 38 S.W.3d 395, 400-01 (Mo. banc 2001). Accordingly, the motion
court did not clearly err in finding that counsel was not ineffective for failing to call
Smith as a witness. Point I is denied.
Point II: Medical Testimony Regarding S.B.’s Injuries
In his second point, Movant contends that defense counsel was ineffective for
failing to elicit testimony from the emergency room physician and medical examiner that
the bruises on S.B. could have been caused by L.C., or someone who performed
cardiopulmonary resuscitation (CPR) on S.B.
“Provided the decision is reasonable, a deliberate and informed choice to pursue
one defense over another is a matter of trial strategy that cannot form the basis of a claim
of ineffective assistance of counsel.” Francis v. State, 183 S.W.3d 288, 300 (Mo. App.
W.D. 2005). “The choice of one reasonable trial strategy over another is not ineffective
assistance.” Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008). Trial strategy
decisions may only serve as a basis for ineffective assistance claims if they are
unreasonable. Id. A strategic decision is reasonable if it was made with the same skill
and diligence that another reasonably competent attorney would use under similar
circumstances. Whitt v. State, 366 S.W.3d 669, 674 (Mo. App. E.D. 2012).
At trial, the State presented medical testimony and evidence to establish that the
bruising and injuries found on S.B.’s body were likely caused by a person of large stature
such as Movant, who at the time of the trial was 6’8” tall and weighed approximately
9 two-hundred-seventy-five pounds. The emergency room physician, Dr. Parisa Jamshidi,
testified that S.B. had “very large bruises” in the shape of “hand prints,” “finger marks,”
and “fist marks” on the lateral side of his upper trunk along the rib cage. When the
prosecutor questioned Dr. Jamshidi whether a “large hand” could have caused S.B.’s
bruising, the doctor replied, “Yes.” During cross-examination, defense counsel
questioned Dr. Jamshidi about the size of the bruises found on S.B.’s body. Counsel
asked the doctor if the bruising on S.B. could be consistent with a “smaller fist or hand.”
Dr. Jamshidi responded, “I don’t think so.” The medical examiner, Dr. Raj Nanduri,
testified that S.B. had bruises on the sides of his chest and back. Dr. Nanduri said that the
same type of injury could be expected in an automobile accident, or small aircraft
accident, or after a boxing match.
At the evidentiary hearing, defense counsel said that he did not attempt to establish
that L.C. could have caused S.B.’s injuries because she had a “very good alibi,” in that,
she was at work during the time that S.B. sustained his fatal injuries. Counsel also
indicated that S.B.’s injuries went far beyond any injuries that the child could have
sustained as a result of CPR. Following the post-conviction hearing, the motion court
issued its order, finding that defense counsel’s decision not to pursue a defense theory
that L.C. or CPR caused S.B.’s injuries was reasonable as a matter of trial strategy. We
agree.
“The question in an ineffective assistance claim is not whether counsel could have
or even, perhaps, should have made a different decision, but rather whether the decision
made was reasonable under all the circumstances.” Henderson v. State, 111 S.W.3d 537,
10 540 (Mo. App. W.D. 2003). In the instant case, counsel gave a reasonable explanation
for his decision not to pursue a defense theory that the child’s mother could have inflicted
the fatal injuries. Counsel concluded there was no basis for pursuing this particular line
of defense because it was undisputed that L.C. was at work during the time that S.B.
sustained his fatal injuries. There was also no evidence that CPR caused the child’s fatal
injuries. The overwhelming evidence supported the jury’s conclusion that Movant
caused S.B.’s death. Defense counsel’s decision to abandon a non-viable defense theory
was reasonable trial strategy. See Hamilton v. State, 208 S.W.3d 344, 349 (Mo. App.
S.D. 2006). Accordingly, the motion court did not err in denying this claim. Point II is
denied.
Conclusion
For the foregoing reasons, the motion court did not clearly err in denying
Movant’s Rule 29.15 motion for post-conviction relief. The judgment of the motion
court is affirmed.
_____________________________________ Philip M. Hess, Judge
Lisa Van Amburg, P.J. and Patricia L. Cohen., J. concur.