In the Missouri Court of Appeals Eastern District DIVISION TWO
MOSE L. MARTIN, ) No. ED112788 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) Cause No. 22SL-CC04632 ) STATE OF MISSOURI, ) Honorable Richard M. Stewart ) Respondent. ) FILED: September 30, 2025
Introduction
Mose Martin (Martin) appeals the judgment denying his Rule 29.151 amended motion for
post-conviction relief. Martin contends the motion court erred because (1) trial counsel was
ineffective for failing to call a witness who would have provided a viable defense and (2) trial
counsel was ineffective for unreasonably failing to call an expert to impeach eyewitness testimony.
We disagree and affirm the motion court’s judgment.
Factual and Procedural Background
On December 25, 2017, Martin and his wife (Victim) were staying at a hotel near the
airport. During the night and into the morning of December 26, Martin accused Victim of cheating
on him and they argued. Victim testified Martin had nonconsensual anal sex with her. Martin
1 All rule references are to the Missouri Supreme Court Rules (2024). struck Victim repeatedly, choked her, and threw her against the wall. Martin then poured butane
on Victim and threatened to burn her with a lit candle.
When Martin left the room, Victim went to the hotel lobby and asked the receptionist to
call the police. While she waited for the police to arrive, Martin drove around to the front of the
hotel and demanded Victim get in his car. Victim refused and Martin drove away.
After the police responded, Victim went to the hospital. Victim was admitted to the
hospital after a CAT scan revealed a subdural hematoma, or brain bleed, on the right side of her
head. Victim was also diagnosed with an auricular hematoma and a fractured rib. She also had
numerous cuts and bruises. A Sexual Assault Nurse Examiner (Nurse) examined Victim and
confirmed she was physically assaulted and sodomized. Nurse collected DNA samples from
Victim’s fingernails, neck, wrist, nipples, and anus. Later testing revealed the presence of at least
one male DNA contributor, but did not identify any possible contributors because Victim’s DNA
overwhelmed the sample.
The State charged Martin with first-degree assault and second-degree sodomy. The case
proceeded to jury trial on April 11, 2022. A jury found Martin guilty of first-degree assault and
not guilty of second-degree sodomy. On June 10, 2022, the trial court sentenced Martin to 25
years imprisonment.
Martin appealed his conviction, and this Court affirmed the judgment of the trial court on
May 11, 2023. State v. Martin, 664 S.W.3d 785 (Mo. App. E.D. 2023). Martin timely filed his
amended Rule 29.15 motion for post-conviction relief, in which he alleged trial counsel was
ineffective in (1) failing to call an expert to impeach Victim’s credibility based on Victim’s alleged
crack cocaine use the night of the assault, and (2) failing to call witnesses to impeach Victim’s
credibility.
2 On March 1, 2024, the motion court held an evidentiary hearing. Trial counsel testified
Martin provided a list of individuals he believed to be potential witnesses, including B.H.—with
whom Martin had a relationship during his marriage to Victim. Trial counsel personally called
every individual on the list for whom Martin provided a phone number. Trial counsel’s strategy
was to narrow the list to those she felt were the most believable, plausible, and had admissible
information. However, trial counsel was unsuccessful in reaching many of the provided contacts,
including B.H. As to possible expert witnesses, trial counsel did not consider hiring an expert to
testify at trial about how crack cocaine use can affect memory to attack Victim’s credibility
because she believed she could elicit that information from the State’s nurse witness. The motion
court found trial counsel’s testimony credible.
B.H. had relocated to Oregon in July of 2017 and testified by deposition. B.H. indicated
she had not wanted to testify at Martin’s trial, but would have if subpoenaed, to avoid getting in
trouble. B.H.’s relevant deposition testimony focused solely on Victim’s character.
Dr. Michael Mullins, a professor of emergency medicine and medical toxicology also
testified at the evidentiary hearing. Dr. Mullins explained crack cocaine’s effect on memory,
testifying that while crack cocaine is not a hallucinogenic drug, it does not leave the memory
unaffected. Dr. Mullins added that based on the inconsistencies in her deposition testimony, trial
testimony, and her statement to Nurse, he believed Victim had impairments in her memory of the
events on the night of the attack.
The motion court denied Martin’s motion for post-conviction relief. This appeal follows.
Standard of Review
Our review of denial of a Rule 29.15 motion for post-conviction relief is limited to
determining whether the motion court’s findings and conclusions are clearly erroneous. Shockley
3 v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); Rule 29.15(k). “A judgment is clearly erroneous
when, in light of the entire record, the court is left with the definite and firm impression that a
mistake has been made.” Id. (internal quotation omitted). We defer to “the motion court’s superior
opportunity to judge the credibility of witnesses.” Anderson v. State, 564 S.W.3d 592, 600 (Mo.
banc 2018) (internal quotation omitted).
Discussion
In both points on appeal, Martin argues the motion court erred in denying his claims of
ineffective assistance of counsel for failing to call a witness.
To establish ineffective assistance of counsel and be eligible for post-conviction relief, a
movant must satisfy the two-prong Strickland2 test. Id. Strickland requires movant to show “by
a preponderance of the evidence that (1) trial counsel failed to exercise the level of skill and
diligence that reasonably competent counsel would exercise in a similar situation and (2) the
movant was prejudiced by that failure.” Dorsey v. State, 448 S.W.3d 276, 286-87 (Mo. banc 2014)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To succed on the performance prong, “movant must overcome the strong presumption that
[trial] counsel’s conduct was reasonable and effective.” Johnson v. State, 406 S.W.3d 892, 899
(Mo. banc 2013). Movant is required to show “specific acts or omissions of counsel that, in light
of all the circumstances, fell outside the wide range of professional competent assistance.” Zink
v. State, 278 S.W.3d 170, 176 (Mo. banc 2009) (internal quotation omitted). Trial strategy
decisions are only ineffective if they were unreasonable. Id.
2 Strickland v. Washington, 466 U.S. 668 (1984).
4 To satisfy the prejudice prong, movant must show “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
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In the Missouri Court of Appeals Eastern District DIVISION TWO
MOSE L. MARTIN, ) No. ED112788 ) Appellant, ) Appeal from the Circuit Court ) of St. Louis County vs. ) Cause No. 22SL-CC04632 ) STATE OF MISSOURI, ) Honorable Richard M. Stewart ) Respondent. ) FILED: September 30, 2025
Introduction
Mose Martin (Martin) appeals the judgment denying his Rule 29.151 amended motion for
post-conviction relief. Martin contends the motion court erred because (1) trial counsel was
ineffective for failing to call a witness who would have provided a viable defense and (2) trial
counsel was ineffective for unreasonably failing to call an expert to impeach eyewitness testimony.
We disagree and affirm the motion court’s judgment.
Factual and Procedural Background
On December 25, 2017, Martin and his wife (Victim) were staying at a hotel near the
airport. During the night and into the morning of December 26, Martin accused Victim of cheating
on him and they argued. Victim testified Martin had nonconsensual anal sex with her. Martin
1 All rule references are to the Missouri Supreme Court Rules (2024). struck Victim repeatedly, choked her, and threw her against the wall. Martin then poured butane
on Victim and threatened to burn her with a lit candle.
When Martin left the room, Victim went to the hotel lobby and asked the receptionist to
call the police. While she waited for the police to arrive, Martin drove around to the front of the
hotel and demanded Victim get in his car. Victim refused and Martin drove away.
After the police responded, Victim went to the hospital. Victim was admitted to the
hospital after a CAT scan revealed a subdural hematoma, or brain bleed, on the right side of her
head. Victim was also diagnosed with an auricular hematoma and a fractured rib. She also had
numerous cuts and bruises. A Sexual Assault Nurse Examiner (Nurse) examined Victim and
confirmed she was physically assaulted and sodomized. Nurse collected DNA samples from
Victim’s fingernails, neck, wrist, nipples, and anus. Later testing revealed the presence of at least
one male DNA contributor, but did not identify any possible contributors because Victim’s DNA
overwhelmed the sample.
The State charged Martin with first-degree assault and second-degree sodomy. The case
proceeded to jury trial on April 11, 2022. A jury found Martin guilty of first-degree assault and
not guilty of second-degree sodomy. On June 10, 2022, the trial court sentenced Martin to 25
years imprisonment.
Martin appealed his conviction, and this Court affirmed the judgment of the trial court on
May 11, 2023. State v. Martin, 664 S.W.3d 785 (Mo. App. E.D. 2023). Martin timely filed his
amended Rule 29.15 motion for post-conviction relief, in which he alleged trial counsel was
ineffective in (1) failing to call an expert to impeach Victim’s credibility based on Victim’s alleged
crack cocaine use the night of the assault, and (2) failing to call witnesses to impeach Victim’s
credibility.
2 On March 1, 2024, the motion court held an evidentiary hearing. Trial counsel testified
Martin provided a list of individuals he believed to be potential witnesses, including B.H.—with
whom Martin had a relationship during his marriage to Victim. Trial counsel personally called
every individual on the list for whom Martin provided a phone number. Trial counsel’s strategy
was to narrow the list to those she felt were the most believable, plausible, and had admissible
information. However, trial counsel was unsuccessful in reaching many of the provided contacts,
including B.H. As to possible expert witnesses, trial counsel did not consider hiring an expert to
testify at trial about how crack cocaine use can affect memory to attack Victim’s credibility
because she believed she could elicit that information from the State’s nurse witness. The motion
court found trial counsel’s testimony credible.
B.H. had relocated to Oregon in July of 2017 and testified by deposition. B.H. indicated
she had not wanted to testify at Martin’s trial, but would have if subpoenaed, to avoid getting in
trouble. B.H.’s relevant deposition testimony focused solely on Victim’s character.
Dr. Michael Mullins, a professor of emergency medicine and medical toxicology also
testified at the evidentiary hearing. Dr. Mullins explained crack cocaine’s effect on memory,
testifying that while crack cocaine is not a hallucinogenic drug, it does not leave the memory
unaffected. Dr. Mullins added that based on the inconsistencies in her deposition testimony, trial
testimony, and her statement to Nurse, he believed Victim had impairments in her memory of the
events on the night of the attack.
The motion court denied Martin’s motion for post-conviction relief. This appeal follows.
Standard of Review
Our review of denial of a Rule 29.15 motion for post-conviction relief is limited to
determining whether the motion court’s findings and conclusions are clearly erroneous. Shockley
3 v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); Rule 29.15(k). “A judgment is clearly erroneous
when, in light of the entire record, the court is left with the definite and firm impression that a
mistake has been made.” Id. (internal quotation omitted). We defer to “the motion court’s superior
opportunity to judge the credibility of witnesses.” Anderson v. State, 564 S.W.3d 592, 600 (Mo.
banc 2018) (internal quotation omitted).
Discussion
In both points on appeal, Martin argues the motion court erred in denying his claims of
ineffective assistance of counsel for failing to call a witness.
To establish ineffective assistance of counsel and be eligible for post-conviction relief, a
movant must satisfy the two-prong Strickland2 test. Id. Strickland requires movant to show “by
a preponderance of the evidence that (1) trial counsel failed to exercise the level of skill and
diligence that reasonably competent counsel would exercise in a similar situation and (2) the
movant was prejudiced by that failure.” Dorsey v. State, 448 S.W.3d 276, 286-87 (Mo. banc 2014)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To succed on the performance prong, “movant must overcome the strong presumption that
[trial] counsel’s conduct was reasonable and effective.” Johnson v. State, 406 S.W.3d 892, 899
(Mo. banc 2013). Movant is required to show “specific acts or omissions of counsel that, in light
of all the circumstances, fell outside the wide range of professional competent assistance.” Zink
v. State, 278 S.W.3d 170, 176 (Mo. banc 2009) (internal quotation omitted). Trial strategy
decisions are only ineffective if they were unreasonable. Id.
2 Strickland v. Washington, 466 U.S. 668 (1984).
4 To satisfy the prejudice prong, movant must show “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Trial counsel’s decision not to call a witness “is presumptively a matter of trial strategy
and will not support a claim of ineffective assistance of counsel unless Movant clearly establishes
otherwise.” Weinhaus v. State, 501 S.W.3d 523, 528 (Mo. App. E.D. 2016) (internal quotation
and brackets omitted).
Point I – Lay Witness
Martin asserts the motion court clearly erred in denying his Rule 29.15 motion because
trial counsel was ineffective for failing to call B.H. at trial to provide a viable defense by
impeaching Victim’s credibility. We disagree and find trial counsel’s decision not to call B.H.
was reasonable because B.H. was not reasonably locatable and her testimony would not have
provided Martin a viable defense.
“To succeed on a claim of ineffective assistance of counsel for failure to call a witness, the
movant must establish: (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.” Martin v. State, 655
S.W.3d 195, 200 (Mo. App. W.D. 2022) (internal quotation omitted).
“The failure to offer testimony that would have only impeached the testimony of
a State’s witness does not warrant relief for ineffective assistance of counsel.” Weinhaus, 501
S.W.3d at 528. “Rather, when the testimony of the witness would also negate an element of the
crime for which a movant was convicted, the testimony provides the movant with a viable
defense.” Id. (internal quotation omitted). “Failure to call a witness only constitutes ineffective
5 assistance of counsel if the witness’s testimony unqualifiedly supports Movant.” Martin, 655
S.W.3d at 200 (internal quotation and brackets omitted).
Martin is unable to demonstrate trial counsel performed ineffectively because she made a
reasonable effort to locate B.H. using the information available to her. Martin gave trial counsel
a list of several individuals with their contact information, consisting of mostly phone numbers, to
reach out to before trial. B.H.’s name and a phone number were included. Martin provided no
other contact information for B.H. Trial counsel called the number Martin provided but was unable
to reach B.H. Trial counsel was not aware that B.H. had moved halfway across the country. Under
these circumstances, trial counsel’s conduct was reasonable. See Johnson v. State, 388 S.W.3d
159, 166 (Mo. banc 2012) (finding counsel is not required “to scour the globe on the off-chance
something will turn up.” (internal quotation omitted)).
Moreover, B.H. testified she was aware the trial was happening but did not want to testify
because she had just moved to Oregon to take a new job, had responsibilities there and “wished to
be done with all of this.” B.H. would only have testified if subpoenaed to avoid getting into
trouble. Because trial counsel made reasonable efforts to contact B.H., her actions cannot be
deemed ineffective assistance.
Additionally, Martin fails to show prejudice because there is not a reasonable probability
B.H.’s testimony would have changed the outcome of the trial. B.H.’s deposition testimony
contained speculation and numerous hearsay statements from Martin. See State v. Johnson, 690
S.W.3d 928, 931 (Mo. App. E.D. 2024) (“Hearsay is an out-of-court statement that is used to prove
the truth of the matter asserted and that depends on the veracity of the statement for its value.”);
Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009) (hearsay is inadmissible unless
it falls under an exception, or it is used for a non-hearsay purpose).
6 B.H. testified Martin told her Victim had falsely accused him of crimes in the past. But
Martin’s statements to B.H. of Victim’s alleged false accusations would have been inadmissible
hearsay, even if intended to show motive. See State v. Kelley, 953 S.W.2d 73, 85 (Mo. App. S.D.
1997) (“[M]otive can no more be proved by inadmissible and objected-to hearsay than any other
fact.”).
B.H. added that Victim stated B.H. would “not have [Martin] unless he was dead or in jail.”
B.H. speculated Victim’s statement meant she may try to falsely accuse Martin of a crime.
However, there is nothing in the record supporting such speculation, and the statement lacks any
context or time in relation to the events at hand. See Am. Standard Ins. Co. of Wisconsin v. Bracht,
103 S.W.3d 281, 292 n.9 (Mo. App. S.D. 2003) (“A witness’[s] testimony predicated on a guess
or speculation with no factual basis does not constitute substantial evidence and has no probative
value.”).
Furthermore, even if B.H.’s testimony was admissible, it would not have “unqualifiedly”
supported Martin. B.H.’s testimony did not provide an alibi for Martin as to the attack of Victim
because she had no knowledge of his whereabouts or actions at the time the event took place. She
also could not have refuted Victim’s account of the assault. B.H.’s testimony consisted mostly of
statements such as “I only know what [Martin] told me,” and “[h]e told me.” These assertions do
not unqualifiedly support Martin and would have been inadmissible. See Johnson, 690 S.W.3d at
931; Martin, 655 S.W.3d at 200. Nothing in B.H’s testimony would have negated an element of
the crime and provided Martin with a viable defense. See Weinhaus, 501 S.W.3d at 528.
Therefore, Martin was not prejudiced by trial counsel’s actions. See id. The motion court did not
clearly err in denying this claim. Point denied.
7 Point II – Expert Witness
Martin claims the motion court clearly erred in denying his Rule 29.15 motion because trial
counsel was ineffective for failing to call an expert to impeach Victim with testimony about
memory impairment caused by crack cocaine use. We disagree.
“To show ineffective assistance of counsel based on failure to present an expert witness, a
movant is required to show what the evidence would have been if the witness had been called.”
Shockley, 579 S.W.3d at 906-07. “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.” Anderson
v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).
“[S]trategic choices made after thorough investigation of law and facts relevant to plausible
opinions are virtually unchallengeable[.]” Strickland, 466 U.S. at 690. “Where counsel has
investigated possible strategies, courts should rarely second-guess counsel’s actual
choices.” Middleton v. State, 103 S.W.3d 726, 736 (Mo. banc 2003). It is not ineffective
assistance of counsel to pursue a reasonable trial strategy to the exclusion of another. Worthington
v. State, 166 S.W.3d 566, 573 (Mo. banc 2005).
Martin cannot show trial counsel performed ineffectively because she employed reasonable
trial strategy. Trial counsel “felt like it would be impactful to basically extract the same type of
information” from the Nurse the State called, than from a defense-called expert because it is
“actually more believable for a jury if you can cross-exam their expert witness or have their expert
witness say things that you ultimately would have wanted your witness to say.” Trial counsel
elicited the testimony regarding Victim’s crack cocaine use, and then relied on it to question
Victim’s reliability in her closing argument. Trial counsel’s strategy to obtain the testimony from
the State’s witness instead of calling a medical expert was reasonable.
8 Further, Martin has not demonstrated prejudice from counsel’s decision not to call an
expert witness. Dr. Mullins’s knowledge of the case at the motion hearing was limited to the police
reports, the SANE report, discharge instructions, and the transcript of the trial and deposition.
Dr. Mullins did not complete a personal examination of Victim himself or have access to any other
medical records such as those from the emergency department or treating physician records.
Dr. Mullins could not determine the source of any potential memory impairments.
Dr. Mullins based his opinion on discrepancies between Victim’s deposition and her
testimony at trial. Dr. Mullins’s opinion would have been inadmissible, as weighing
inconsistencies in testimony is better left for the jury to decide. See State v. Williams, 858 S.W.2d
796, 798 (Mo. App. E.D. 1993) (“Expert testimony is not admissible as it relates to credibility of
witnesses.”).
The evidence presented by Dr. Mullins would not have changed the outcome of Martin’s
trial. Dr. Mullins described how crack cocaine causes distortions or deficits in short term memory
resulting in impairments of the details of a recalled event, but that crack use does not cause
blackouts or amnesia. Further, Dr. Mullins testified such impairment would not cause someone to
misidentify or forget a spouse’s presence during a traumatic event. Victim identified Martin, her
husband, as the attacker. There is nothing in the record indicating Dr. Mullins’s testimony would
have refuted that. Therefore, trial counsel was not ineffective for failing to call an expert witness
to testify, and the motion court did not clearly err in denying this claim. Point denied.
Conclusion
Finding no error in the motion court’s judgment, we affirm.
________________________ Virginia W. Lay, J. Michael S. Wright, P.J., concurs. Philip M. Hess, J., concurs. 9