Mort v. State

411 S.W.3d 829, 2013 WL 2659639, 2013 Mo. App. LEXIS 715
CourtMissouri Court of Appeals
DecidedJune 13, 2013
DocketNo. SD 32042
StatusPublished

This text of 411 S.W.3d 829 (Mort 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
Mort v. State, 411 S.W.3d 829, 2013 WL 2659639, 2013 Mo. App. LEXIS 715 (Mo. Ct. App. 2013).

Opinion

NANCY STEFFEN RAHMEYER, J.

Joseph W. Mort (“Movant”) was convicted of two counts of first-degree statutory sodomy and sentenced to two consecutive terms of life in prison; he subsequently filed a post-conviction motion under Rule 29.15(a)1 claiming his trial counsel2 was [831]*831ineffective for failing to call witnesses, for failing to present evidence that another person caused “any medical evidence,” and for misadvising him as to his right to testify.3 We affirm.

We review the motion court’s judgment under Rule 29.15 to determine whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Johnson v. State, 102 S.W.3d 535, 537 (Mo. banc 2003). “Findings and conclusions are clearly erroneous if, after reviewing the entire record, there is a definite and firm impression that a mistake has been made.” Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010).

Failure to Call Witnesses

Unless clearly shown otherwise, trial counsel’s decision not to call a witness is presumed to be trial strategy. Gennetten v. State, 96 S.W.3d 143, 151 (Mo.App. W.D.2003).

To prevail on a claim of ineffective assistance of counsel for failure to locate and call an expert witness, the movant must show that: (1) such an expert witness existed at the time of trial; (2) the expert witness could be located through reasonable investigation; and (3) the expert witness’s testimony would have benefited the defense.

Zink v. State, 278 S.W.3d 170, 179 (Mo. banc 2009).

Dr. Kozlowski Expert Witness

Movant claims trial counsel was ineffective because they did nothing to challenge “the erroneous testimony” of the State’s expert witness. At the evidentiary hearing, Movant claimed that Dr. Karen Kozlowski would have rebutted the State’s witness concerning medical evidence that the victim showed signs of sexual abuse. The problem with Dr. Kozlowski’s testimony is that the allegations of abuse against Movant are not necessarily related to any medical testimony concerning the victim. The testimony at trial indicated that the charged behavior would not necessarily have caused physical injury to the victim.4 More importantly, there was evidence that a friend of Movant, Chad Elliott, had engaged in sexual abuse of the victim. Mov-ant’s trial strategy was to suggest that Elliott had caused any damage to the victim. Thus, the testimony of Dr. Kozlowski that there were no visible signs of sexual abuse would not have benefited Movant’s defense. Point I is denied.

Shawn Boyd

Movant’s second point states: “The motion court erred in finding that trial counsel were not ineffective for failing to endorse and present Shawn Boyd as an expert witness.” Movant’s point relied on does not comply with Rule 84.04. Movant does not advise us of the legal reasons why he should prevail or the facts in the context of this case to support that claim. Nonetheless, we take Movant’s point to mean that trial counsel erred in failing to endorse Boyd as an expert witness and its implication that, had counsel properly endorsed Boyd, Boyd would have been allowed to testify. Movant claims in his argument that trial counsel was ineffective in failing to offer Ms. Boyd as an expert to explain an alternative theory for the lack of detail in the victim’s initial interview [832]*832and animosity between Movant and his ex-wife.

As to the first allegation, that there was an alternative theory for the lack of detail in the victim’s initial interview, that allegation was presented to the trial court by trial counsel. The objection to Boyd’s trial testimony was that it was not relevant to any issue in the case. Movant’s trial counsel was allowed to voir dire Boyd, who testified that certain protocols had not been followed by the Children’s Division regarding the notification and interviewing of the alleged perpetrator and the contacting of potential witnesses. Boyd testified that she did not know that there was anything improper about the interviews of the victim conducted by the Children’s Center. After the voir dire and several other objections, the court sustained the motion to exclude her testimony partly on the basis that the case involved no issues about proper Children’s Division protocol.

Furthermore, on the direct appeal of this case, this Court found that the trial court did not abuse its discretion in finding Boyd’s testimony was irrelevant, that the testimony went to a collateral matter, namely whether investigators for the Children’s Division followed agency protocols in their investigation. State v. Mort, 321 S.W.3d 471, 484 (Mo.App. S.D.2010). Because the trial court did not err in excluding the testimony as irrelevant, this Court did not address the question of whether Boyd was timely disclosed as an expert. Id. at 484 n. 12.

As to the second claim in the argument, that there was animosity between Movant and his ex-wife, that claim was not preserved below. Although Movant attempted to substantially expand his claim of ineffective assistance of counsel at the evi-dentiary hearing and in this Court to include a factual claim that Boyd knew that Movant’s ex-wife was hostile to Movant in a custody matter, that issue has not been developed or preserved in this point.

As we noted, in this point Mov-ant is claiming that trial counsel was ineffective for failing to endorse Boyd as an expert. The trial court questioned whether Boyd would have been allowed to testify as an expert witness concerning the interviews. The motion court also found that had Boyd been endorsed as an expert her testimony would not have been admissible as much of it was inadmissible hearsay. She had no opinion whether “coaching” had occurred and had not even watched the videotaped interviews of the victim. As this Court found in the direct appeal, Boyd’s testimony would not have been admissible because it was irrelevant. Even an expert cannot testify to irrelevant matters. Counsel will not be found ineffective for failing to offer inadmissible evidence. Marsckke v. State, 185 S.W.3d 295, 307 (Mo.App. S.D.2006). Point II is denied.

Victim’s Childhood Friend, P.S., and Cynthia Marshall

Movant claims that his trial counsel was ineffective for failing to call P.S., the victim’s best friend, to the stand. Movant claims P.S. would have contradicted the victim’s testimony that Movant “touched [the victim’s] vagina with his fingers” in the computer room and that she was present in the computer room all night. She did testify at the evidentiary hearing that the victim (who was nine years old at the time of the incident) was sitting on Mov-ant’s lap as Movant rubbed her leg. P.S. acknowledged at the evidentiary hearing that Chad Elliott was present at that same time and that he touched her and did some things to her in the computer room and while those things were happening, she did not know what Movant was doing to the victim.

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Related

Johnson v. State
102 S.W.3d 535 (Supreme Court of Missouri, 2003)
Gennetten v. State
96 S.W.3d 143 (Missouri Court of Appeals, 2003)
Zink v. State
278 S.W.3d 170 (Supreme Court of Missouri, 2009)
Kuhlenberg v. State
54 S.W.3d 705 (Missouri Court of Appeals, 2001)
Marschke v. State
185 S.W.3d 295 (Missouri Court of Appeals, 2006)
State v. Mort
321 S.W.3d 471 (Missouri Court of Appeals, 2010)
Moore v. State
328 S.W.3d 700 (Supreme Court of Missouri, 2010)
State v. Swims
966 S.W.2d 368 (Missouri Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
411 S.W.3d 829, 2013 WL 2659639, 2013 Mo. App. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mort-v-state-moctapp-2013.