LIMBAUGH, Chief Justice.
Herbert Smulls was convicted in the Circuit Court of St. Louis County of first-degree murder and other crimes and was sentenced to death. On appeal, his convictions and sentence were affirmed, but the judgment on his Rule 29.15 post-conviction motion was reversed. State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 180 (1997). On remand, his post-conviction motion was overruled, but again the judgment was reversed on appeal. Smulls v. State, 10 S.W.3d 497 (Mo. banc 2000). On the latest remand, the post-conviction motion was again overruled. This Court has jurisdiction. Mo. Const, art. V, sec. 10. The judgment is affirmed.
I. Background
In 1991, Smulls was charged with first-degree murder, first-degree assault, two counts of first-degree robbery, and two counts of armed criminal action. The jury convicted Smulls of robbery but could not come to a verdict on the other charges. On retrial, Smulls was convicted on all the remaining counts. Judge William Corri-gan presided at both trials. The facts surrounding the offenses, as reported in this Court’s original opinion, are as follows:
Stephen and Florence Honickman owned and operated a jewelry business. Typically, customers wold make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as “Jeffrey Taylor” called the Honickmans and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as defendant. On July 22,1991, defendant and Norman Brown went to the Honickmans’ store. After viewing several diamonds, defendant and Brown left the store without making a purchase.
[143]*143On the afternoon of July 27, 1991, defendant and Norman Brown followed another customer into the store. Florence Honickman was unable to show them any jewelry at that time but suggested she might be able to help them later. Defendant and Brown returned to the store that evening. After viewing some diamonds, defendant and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence Honickman looked up and saw defendant aiming a pistol at her. She then ran and hid behind a door. Defendant fired three shots at her, striking her arm and side. Defendant then fired several shots at Stephen Honickman, who was struck three times. Defendant and Brown stole jewelry worn by Florence Honickman and other items in the store. After the two men left the store, Florence Honickman contacted the police. Stephen Honickman died from his wounds, and Florence Honickman suffered permanent injuries from the attack.
A short time after the robbery, police stopped defendant and Brown for speeding. While defendant was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans’ store. Defendant and Brown fit the descriptions. The officer ordered defendant to he on the ground. Defendant then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown’s possession. The following morning police found a pistol on the shoulder of the road on which defendant drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman.
State v. Smulls, 935 S.W.2d at 13. In penalty phase, the jury found the existence of three statutory aggravating factors:
[T]he murder of Stephen Honickman was committed while defendant was engaged in the attempted unlawful homicide of Florence Honickman; the defendant murdered Stephen Honickman for the purpose of defendant receiving money or any other thing of monetary value from Stephen Honickman; and, the murder of Stephen Honickman was committed while defendant was engaged in the perpetration of a robbery.
Id. at 24. Additionally, the state introduced evidence of non-statutory aggravating circumstances including Smulls’ eleven prior felony convictions. In affirming the judgment imposing the death sentence, this Court determined 1) that the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, 2) that the jury’s finding of the statutory aggravating circumstance was supported by the record, and 3) that the sentence was not excessive or disproportionate to similar cases.
Despite the fact that Smulls’ convictions and death sentence were affirmed, this Court held that certain comments Judge Corrigan made during a Batson hearing at voir dire provided “an objective basis upon which a reasonable person could base a doubt about the racial impartiality of the trial court.” Id. at 26. These comments, coupled with allegations of pre-trial out-of-court misconduct and Judge Corrigan’s status as a potential witness on those allegations, required his disqualification from Smulls’ Rule 29.15 hearing. Id. at 27. Accordingly, Judge Corrigan’s denial of Rule 29.15 relief was reversed, and the case was remanded for a new hearing. On remand, Judge Emmett O’Brien, another member of the St. Louis County Circuit Court, was assigned to hear the motion. [144]*144Smulls filed motions to voir dire and disqualify Judge O’Brien and all other past and present St. Louis County judges. Judge O’Brien overruled those motions and denied the Rule 29.15 motion on the merits. On appeal, this Court held that statements in a deposition taken of Judge Corrigan indicated that prior to taking the case, Judge O’Brien may have discussed the case with Judge Corrigan and should possibly have recused himself from the 29.15 hearing. Smulls v. State, 10 S.W.3d at 504. This Court remanded for determination of the recusal issue, but with the following proviso:
[I]f ... the hearing court finds no basis for disqualification of Judge O’Brien, the Rule 29 proceedings may be reassigned to Judge O’Brien for re-entry of his judgment.
Id. at 505.
On remand, the case was assigned to Judge James Hartenbach, yet another member of the St. Louis County Circuit Court, who, after an evidentiary hearing, determined that the motion to disqualify Judge O’Brien was properly overruled. Pursuant to this Court’s directive, Judge Hartenbach ordered the case reassigned to Judge O’Brien, and Judge O’Brien then reentered his judgment overruling Smulls’ Rule 29.15 motion. Smulls now appeals the determination that Judge O’Brien could properly hear the motion as well as Judge O’Brien’s denial on the merits of his Rule 29.15 motion.
II. Smulls’ Motion to Disqualify All St. Louis County Judges
After the 1996 remand, Smulls filed a motion to disqualify all current and former judges of the St. Louis County Circuit. That motion was overruled. The issue was briefed on the second appeal to this Court and denied. Smulls v. State, 10 S.W.3d at 499-500. Smulls now attempts to raise the issue again. However, this Court’s earlier resolution of the issue on the merits is the law of the case and the issue may not be raised again. Williams v. Kimes, 25 S.W.3d 150, 153-54 (Mo. banc 2000).
III. Motion to Disqualify Judge O’Brien
A. Exelusion of Evidence
Smulls first claims that Judge Har-tenbach erred in excluding certain evidence from the hearing that pertained to Judge O’Brien’s alleged bias: (1) the testimony of two judges from St. Louis City expressing concern that a campaign was being waged by other judges in favor of Judge Corrigan and against the author of this Court’s first opinion; (2) letters sent to this Court by other judges on Judge Corrigan’s behalf asking this Court to rehear Smulls’ case; and (3) certain newspaper articles from the St. Louis Post-Dispatch harshly critical of Judge Corrigan.
Smulls contends the evidence is relevant because it would engender sympathy for Judge Corrigan and pressure Judge O’Brien to vindicate his fellow judge. Additionally, Smulls points to this evidence to establish that Judge O’Brien was influenced by extra-judicial factors, giving rise to an appearance of impropriety. See State v. Hunter, 840 S.W.2d 850, 866 (Mo. banc 1992).
Judge Hartenbach rejected this evidence because it was irrelevant. This Court agrees. Smulls did not show that Judge O’Brien had been exposed to any of the specific evidence in question, nor did Smulls attempt to ask Judge O’Brien about it during O’Brien’s testimony at the hearing before Judge Hartenbach. Although Judge O’Brien testified that he was generally aware of newspaper articles on the issue, he could not recall the content of [145]*145any of them. As for the concern from the two St. Louis City judges and the letters to this Court, Judge O’Brien testified that he was not aware of any effort by the legal community to influence this Court’s opinion. Because he had no knowledge of the rejected testimony, letters, and articles, they could not have influenced him. Even if Judge O’Brien had been aware of the evidence, this alone would not require his disqualification because judges are presumed to be able to set such evidence aside in deciding a case. See State v. Taylor, 929 S.W.2d 209, 220 (Mo. banc 1996).
B. Judge O’Brien’s Impartiality
Smulls next claims Judge Harten-bach erred in his determination that Judge O’Brien could impartially hear Smulls’ Rule 29.15 motion on remand. The basis of the claim, from Smulls’ point relied on, is that “O’Brien was with Corrigan when Corrigan condemned this Court’s calling him ‘a racist’ and O’Brien may have participated in criticizing language that produced lobbying against this Court thereby creating an appearance of impropriety....” This claim arises against the backdrop of this Court’s revision of its original opinion in Smulls I by deleting certain language that was highly critical of Judge Corrigan. See Smulls v. State, 10 S.W.3d at 506, n. 2 (Limbaugh, J., dissenting).
The Due Process Clause of the United States and Missouri Constitutions guarantee a criminal defendant an impartial tribunal, permitting any litigant to remove a biased judge. State v. Taylor, 929 S.W.2d at 220. Canon 3(D)(1) of the Missouri Code of Judicial Conduct, Rule 2.03, requires a judge to recuse in a proceeding where a “reasonable person would have a factual basis to doubt the judge’s impartiality.” Id. This standard does not require proof of actual bias, but is an objective standard that recognizes “justice must satisfy the appearance of justice.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1986). Under this standard, a “reasonable person” is one who gives due regard to the presumption “that judges act with honesty and integrity and will not undertake to preside in a trial in which they cannot be impartial.” State v. Kinder, 942 S.W.2d 313, 321 (Mo. banc 1996). In addition, a “reasonable person” is one “who knows all that has been said and done in the presence of the judge.” Haynes v. State, 937 S.W.2d 199, 203 (Mo. banc 1996). Finally, as to due process challenges, the Supreme Court has made clear that “only in the most extreme of cases would disqualification on this basis be constitutionally required.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986); see also State v. Jones, 979 S.W.2d 171, 177 (Mo. banc 1998).
In view of the allegations raised by Smulls, two cases are particularly helpful. In State v. Nunley, 923 S.W.2d 911, 918 (Mo. banc 1996), an issue presented was whether a resentencing judge from the same circuit as the original judge could “set aside his feelings for the original trial judge” and come to an independent sentencing determination. Similarly, in State v. Taylor, 929 S.W.2d at 220, the defendant argued that due to the collegial relationship between the resentencing judge and the original judge, the resentencing judge would want to “give[] the original judge a vote of confidence” by imposing the same sentence. In both Nunley and Taylor, this Court held that disqualification was not required absent evidence of a special relationship between the judges that might create an appearance of impropriety. Id.; Nunley, 923 S.W.2d at 918. [146]*146Here, Smulls has failed to establish that such a special relationship existed.
More particularly, there is no basis for establishing that special relationship, much less an appearance of impropriety, through the allegation that O’Brien knew Corrigan condemned this Court for calling him “a racist,” and that O’Brien, himself, may have criticized this Court’s original opinion. In that regard, the record of Judge O’Brien’s interaction with Judge Corrigan shows the following: Judge Corrigan testified that he discussed this Court’s decision with many judges on the St. Louis County Circuit bench; some of those judges criticized this Court’s opinion, and he and Judge O’Brien discussed the case at some point between the issuance of this Court’s original and modified opinions; however, Judge Corrigan was not sure whether his discussion with Judge O’Brien was superficial or even whether Judge O’Brien was one of the judges who criticized the opinion.
Judge O’Brien testified that he did not recall overhearing Judge Corrigan express any specific disagreement, including any specific disagreement with language used in this Court’s original opinion. When asked if he and Judge Corrigan discussed the racial bias claim in Smulls, Judge O’Brien stated, “I’ve heard statements made by Judge Corrigan, none of which were after the modified opinion came out ... I don’t think any of them dealt with specific issues within the opinion. I think it was just an overall displeasure with the opinion.” Judge O’Brien also testified that he did not have any contact with Judge Corrigan after the modified opinion was issued, and he avoided contact with anyone discussing the case because he knew it was possible that he would be assigned to hear the case. At most, he presumed the opinion “was not Judge Corrigan’s favorite,” because it was critical of Judge Corrigan’s fitness for the bench.
Finally, there is no evidence that Judge O’Brien “participated in criticizing language that produced lobbying against this Court,” nor, as noted, is there evidence that Judge O’Brien even knew of allegations to that effect. In fact, his only criticism on this record was that this Court’s comments regarding Judge Corrigan’s fitness for the bench was a matter better suited for the Commission on Retirement, Removal and Discipline. That criticism does not establish disqualifying bias, if for no other reason than that the criticism was validated when this Court deleted the comments regarding Judge Corrigan’s fitness.
In sum, Smulls failed to prove, either through the existence of a special relationship between Judge O’Brien and Judge Corrigan or through Judge O’Brien’s comments and actions themselves, that a reasonable person would have reason to doubt Judge O’Brien’s impartiality.
IV. Denial of Rule 29.15 Claims with Evidentiary Hearing
The effect of this Court’s determination that Judge O’Brien could hear Smulls’ Rule 29.15 hearing is that Judge O’Brien’s denial on the merits is reinstated. Smulls’ amended motion contained twenty-six claims. All but five were dismissed without an evidentiary hearing. An evidentia-ry hearing was granted on the five claims, as well as several from Smulls’ pro se motion. These include ineffective assistance of counsel claims for (a) failure to move for Judge Corrigan’s disqualification, (b) failure to present the results of gunshot residue tests performed on Smulls and his accomplice, (c) failure to present certain mitigating factors in penalty phase, and (d) discouraging Smulls from testifying at his second trial. All of these claims were [147]*147denied. The standard of review is as follows:
This Court’s review is limited to determining whether the motion court clearly erred in its findings and conclusions. The findings and conclusions of the motion court are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.
Rousan v. State, 48 S.W.3d 576, 581 (Mo. banc 2001) (citations omitted).
A. Failure to Move for Judge Corrigan’s Disqualification
The principal claim of this appeal is that Smulls’ trial counsel was ineffective for failing to discover evidence of Judge Corri-gan’s racial bias and move for his disqualification. This claim is based essentially on the same allegations and conduct this Court considered in disqualifying Judge Corrigan from hearing the Rule 29.15 motion: 1) that prior to the case, Judge Cor-rigan told a racist joke to a group of judges, that judgment had been entered against him for sexual harassment, and that he discriminated against African-American defendants in the disposition of criminal cases; and 2) that during the case, he made racially insensitive comments at the Batson hearing.
Although the circumstances of the Bat-son hearing were reported extensively in the first Smulls opinion, they bear repeating here: The defendant noted that Ms. Sidney was the only remaining black veni-reperson and requested a Batson hearing. When the prosecutor stated his reasons for striking Ms. Sidney, Smulls’ counsel claimed the reasons were pretextual and requested a mistrial. The court denied defendant’s request. The next day, Smulls’ counsel renewed the Batson challenge and stated for the record that Judge Corrigan would have been aware the victims were white and the defendant was black because he presided over the first trial. Judge Corrigan stated he did not remember who was black and who was white, but that he would accept the defendant’s statement. He then reiterated his denial of the Batson claim. When the defendant again noted that Ms. Sidney was the last black venireperson, Judge Corri-gan stated that he did not know what it meant to be black, that he never takes judicial notice of a person’s race without direct evidence, and that it is counsel’s responsibility to establish who is black and who is not. In this regard, he added:
There were some dark complexioned people on this jury. I don’t know if that makes them black or white. As I said, I don’t know what constitutes black. Years ago they used to say one drop of blood constitutes black. I don’t know what black means. Can somebody enlighten me of what black is? I don’t know; I think of them as people.
1. Exclusion of Evidence
Initially, Smulls assigns error to Judge O’Brien’s exclusion of certain evidence regarding Judge Corrigan’s racial prejudice.
a. Unofficial Transcript
During the original 29.15 proceedings, Smulls directed a request for admissions to the prosecuting attorney seeking to establish that the defendant was black, the victims were white, and the jury panel selected was all white. Following longstanding custom and practice for non-evi-dentiary motion hearings in civil cases, Judge Corrigan did not provide the court’s official reporter. Therefore, Smulls brought a private court reporter to the hearing who recorded and transcribed the following statements from Judge Corrigan:
[148]*148This Court won’t take the position that people are white or black. It is the Court’s position that you can’t look at people and determine what their race is .... If the lawyers don’t want to ask the jurors whether the people are white or black or ask a witness if he’s white or black, then I don’t think that I—I can ask the parties to make that admission.
At the 29.15 remand hearing before Judge O’Brien, Smulls tried to admit this transcript, arguing that the transcript demonstrates Judge Corrigan’s professed inability to acknowledge a person’s race. Smulls also wished to present testimony and an affidavit from his original 29.15 counsel that Judge Corrigan made statements indicating he could recognize a person’s race when he so chose.
On objection by the state, Judge O’Brien properly excluded the transcript on the basis that the reporter was not the official court reporter, the reporter did not appear at the hearing to attempt to authenticate the transcript, and the transcript was not self-proving. In addition, Rule 57.03(f) states that after a deposition is taken and transcribed, it must be submitted to the deponent for his reading and signature. This was not done. Subsection (g) then provides for the signature of the officer transcribing the deposition, but in the absence of the signature of the deponent, that attestation does not guarantee the accuracy of the transcript. Coffel v. Spradley, 495 S.W.2d 735, 738 (Mo.App.1973). For all of these reasons, the transcript was inadmissible. Regardless, given the similarities between this transcript and Judge Corrigan’s statements during the Batson hearing already in evidence, the transcript would have been cumulative.
b. Counsel’s Race-Recognition Testimony
Smulls’ former counsel attempted to testify via affidavit that during the initial Rule 29.15 hearing, Judge Corrigan referred to the woman who years before sued him for sexual discrimination as “white.” The state objected to the testimony on several grounds, including relevancy, and Judge O’Brien sustained the objection. Although the testimony was offered to show Judge Corrigan’s possible bias or untruthfulness about race-recognition, it is irrelevant to show counsel’s ineffectiveness for failing to discover that bias or untruthfulness. For this evidence to be relevant to that claim, the evidence must have been known to counsel or discoverable during reasonable investigation. White v. State, 939 S.W.2d 887, 895-96 (Mo. banc 1997). However, Judge Corri-gan’s statement was not made to counsel until the initial Rule 29.15 hearing, after trial. Smulls’ counsel could not have presented this evidence in a motion to disqualify before or during trial, many months before the statement was made.
c. “Barbecue Joke ” Evidence
A Postr-Dispatch article published in 1983 reported that Judge Corrigan said during a meeting of judges that, “We can’t have a barbecue because we don’t have a black judge to do the cooking.” Smulls claims he offered this article not to establish whether there were in fact any black judges in the St. Louis County Circuit, but to establish that Judge Corrigan was biased and that his bias was public knowledge. He claims his counsel knew or should have discovered this alleged evidence of bias, and that that contributed to counsel’s ineffectiveness in failing to file a motion to disqualify Judge Corrigan. Judge O’Brien ruled the article was hearsay.
“A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that [149]*149depends on the veracity of the statement for its value.” Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 59 (Mo. banc 1999). To the extent that the article was offered to prove bias, it was inadmissible. Contrary to defendant’s position, the truth of the matter asserted is not that they could not have a barbecue because there were no black judges available, but that Judge Cor-rigan said they could not have a barbecue because there were no black judges available. See 8 STEPHEN A. SALTZBURG, ET AL., FEDERAL RULES OF EVIDENCE MANUAL 1466 (7th ed.1998). On the other hand, the article was admissible to show that the allegation that Judge Corrigan was biased was a matter of public knowledge, and, in fact, Judge O’Brien admitted the testimony for that limited purpose.
Smulls also offered the deposition testimony of Judge Campbell, who related that he personally overheard Judge Corrigan making the joke. Judge O’Brien disallowed this evidence on hearsay grounds, but the state has made no effort in its brief to defend the ruling. Assuming the testimony should have been admitted, it is much less probative of what Smulls’ counsel knew or should have discovered about the matter than the newspaper article. To the extent Judge O’Brien disallowed or discounted this evidence, Smulls was not prejudiced.
d. Gender Discrimination Suit Evidence
Smulls next claims the motion court erred in excluding certain evidence related to a 1982 gender discrimination suit against Judge Corrigan that resulted in a judgment against him as reported in Goodwin v. Circuit Court of St. Louis County, 729 F.2d 541 (8th Cir.1984). The evidence consisted of: 1) an affidavit from the plaintiff in that case to the effect that Judge Corrigan accurately identified her as “white,” and 2) docket sheets reflecting that the case was heard by an African-American judge. The purported relevancy of this evidence was that it tended to show that Judge Corrigan could identify the race of a party when he so chose, and “demonstrat[ed] and prove[d] why Corri-gan approximately one year later told the barbecue joke.” These matters were not pled as part of the Rule 29.15 motion, and the evidence was properly excluded for that reason. Even if those matters were properly pled, the relevancy of the evidence is tenuous, especially in light of this Court’s holding in the original Smulls opinion that the gender discrimination suit in question did not disqualify Judge Corri-gan from hearing gender-Raisoii claims. State v. Smulls, 935 S.W.2d at 16-17.
e. Exclusion of Dr. Galliher’s testimony
Smulls called Dr. John Galliher, a professor of sociology who had reviewed Judge Corrigan’s conduct during various trials in order to establish racial bias. Judge O’Brien excluded the evidence for a variety of reasons, ultimately concluding that the testimony was not credible. On appellate review, such a determination will rarely be overturned because a trial court is in the best position to assess the credibility and usefulness of expert testimony. Rousan v. State, 48 S.W.3d at 589.
In an offer of proof, Dr. Galliher discussed at length the existence and effect of unconscious racial bias in our society, that people with such bias falsely claim not to be able to recognize race and will tell jokes to express their feelings, and that there is a correlation between gender bias and racial bias. He also commented on excerpts from Smulls’ trial and several of Judge Corrigan’s other cases. He concluded that “Judge Corrigan’s behaviors viewed together were inconsistent with adhering to Batson’s spirit and were relevant to [150]*150Smulls’ ability to have Batson fairly decided.”
Judge O’Brien rejected this testimony in part because it did not satisfy the Frye test that an expert opinion must be based upon a valid and accepted scientific methodology and assist the trier of fact in the determination of an issue. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 860 (Mo. banc 1993); Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). Dr. Galliher admitted that his opinions were not based upon a random sampling of Judge Corrigan’s cases or any first-hand observation of any of Judge Corrigan’s cases. He testified that Judge Corrigan berates black defendants in a manner not found in cases with white defendants, but admitted that he did not look beyond the nine cases selected by Smulls (out of hundreds heard), and that the defendants were black in only six of those nine cases. The circumstances of these cases prove the point: In one case, Judge Corrigan referred to the defendant as an “animal,” but the defendant had been convicted of the brutal beating and rape of an elderly woman; in another case, Judge Corrigan called the defendant a “mad dog;” but the defendant was a serial rapist; in another case, he called the defendant a “flim-flam man,” but the defendant had been found guilty of forgery and defrauding his employer. The other cases are comparable. This is hardly proof of a pattern of racial bias. Moreover, Dr. Galliher was not able to identify any prejudice in the actual imposition of sentences and noted Judge Corrigan consistently followed the jury’s recommendation. For these reasons, Judge O’Brien did not abuse his discretion in rejecting Dr. Galliher’s testimony.
f. Smulls’ Affidavits from Defense Attorneys
Next, Smulls complains that Judge O’Brien improperly excluded “evidence about an alleged policy of racial discrimination by St. Louis County prosecutors in voir dire.” This evidence was offered by way of affidavits from three local criminal defense lawyers and was designed to show that Smulls’ counsel should have disqualified Judge Corrigan to avoid the combination of a biased prosecutor and a biased judge. This claim fails because it was determined in the initial appeal that no error occurred in deciding the merits of the Batson challenge. State v. Smulls, 935 S.W.2d at 14-16.
2. Stay of Judge O’Toole’s Deposition
Smulls subpoenaed Judge Daniel O’Toole, claiming Judge O’Toole also heard Judge Corrigan tell the “barbecue joke.” At the state’s request, Judge O’Brien stayed the deposition until he determined Smulls was entitled to an evidentiary hearing on the ineffective assistance of counsel claim to which the deposition related. Judge O’Brien lifted the stay on January 5, 1998, but he denied Smulls’ motion for a continuance of the evidentiary hearing until the deposition could be taken. Nonetheless, he assured Smulls that additional time would be provided as necessary. Smulls scheduled the deposition for March 9, 1998, but Judge O’Toole died on that very day after an extended bout with cancer.
Smulls first claims that the state had no standing to request the stay. Smulls is mistaken. The rules of civil procedure apply to Rule 29.15 motions. Rule 29.15(a). Rule 56.01(c) permits any party to file a motion for a protective order. A request for a stay order falls within that rule.
Smulls next claims that the trial court’s stay of the deposition was improper because Smulls was denied access to a witness who had useful information. “Trial [151]*151courts have broad discretion in administering rules of discovery, which this Court will not disturb absent an abuse of discretion.” State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc 1998). As noted, the basis of the state’s motion was that the deposition was premature and unduly burdensome until the motion court determined whether Smulls was entitled to an evidentiary hearing. The stay was proper under Rule 56.01(c), which permits the trial court to make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Smulls’ citation to Rule 56.01(b)(1), which states that parties are entitled to discovery on any relevant matter, does not address the issue. Judge O’Brien’s ruling was not a determination that Smulls was not entitled to the discovery. The stay was in place only until he granted an evidentiary hearing and was lifted three months prior to Judge O’Toole’s death. There was no abuse of discretion. See State v. Ferguson, 20 S.W.3d 485, 504 (Mo. banc 2000).
Smulls also argues that Judge O’Brien improperly refused to continue the eviden-tiary hearing until Judge O’Toole could be deposed. Smulls filed a motion requesting a continuance or, “at minimum,” that the court “hold open’ the evidence” until the deposition could be taken. In response, Judge O’Brien denied the motion, but stated he would grant a continuance at the close of Smulls’ evidence if the deposition had not yet been secured. It is well settled that “[t]he decision to grant or deny a request for a continuance ... rests within the trial court’s discretion and will not be reversed absent a clear showing of abuse of discretion.” State v. Barton, 998 S.W.2d 19, 27 (Mo. banc 1999). Because the court was willing to grant a continuance if Judge O’Toole’s deposition was not taken by the time Smulls rested his case, there was no abuse of discretion.
3. Admission of Judge Corrigan’s Character Witnesses
Smulls objected to the relevancy of the state’s presentation of five prominent criminal defense attorneys who know Judge Corrigan and testified to his reputation as being free of bias when judging cases involving African-Americans. Smulls concedes that character evidence is relevant when put in issue by the nature of the proceeding, and his real complaint seems to be that character evidence has no bearing on racial bias. However, an inquiry into a judge’s alleged racial bias cannot be conducted without an inquiry into the judge’s character because the presence or absence of racial bias is part of a judge’s character. Where, as here, a party has opened the door by introducing evidence of bad character as manifested by racial bias, the other party may introduce evidence of good character as manifested by the lack of racial bias.
Citing Clemmons v. State, 785 S.W.2d 524, 531 (Mo. banc 1990), Smulls also argues that the character and reputation witnesses were not competent to testify because their testimony relates solely to “issues the motion court must decide.” It is clear from their testimony, however, that the witnesses were testifying not as experts on a matter of law, but as persons familiar with Judge Corrigan’s judicial temperament. In Clemmons, the attorneys were impermissibly testifying regarding ineffective assistance of counsel, an issue of law. Id. In contrast, the witnesses here testified regarding bias, a factual determination. See State v. Kinder, 942 S.W.2d at 334 (Mo. banc 1996); State v. Thomas, 596 S.W.2d 409, 413 (Mo. banc 1980).
4. Analysis of the Evidence of Racial Bias
To succeed on the claim that trial counsel should have disqualified [152]*152Judge Corrigan on the ground of racial bias, Smulls must show that there was evidence of such disqualifying bias that his trial counsel knew of or could have discovered with a reasonable amount of investigation. White v. State, 939 S.W.2d at 895-96; State v. Twenter, 818 S.W.2d 628, 640 (Mo. banc 1991). Smulls has not done so. Most of the pre-trial, out-of-court evidence that purportedly indicated Judge Corri-gan’s racial bias should not be considered because it was properly excluded from evidence at the Rule 29.15 hearing before Judge O’Brien. In particular, the newspaper article about the racist joke was hearsay, and the report from Dr. Galliher on Judge Corrigan’s allegedly disparate treatment of black defendants was not based on scientific study and lacked credibility otherwise.
Even if that evidence had been properly admitted, it is not evidence that trial counsel knew of or could have discovered with a reasonable amount of investigation. To uncover evidence that Judge Corrigan allegedly told a single racist joke to an informal group of judges some ten years before trial, even when the joke was reported in the newspaper, is not required as part of any reasonable investigation. This is especially true considering trial counsel has only limited resources and must necessarily be given deference as to the target and scope of such investigation. See State v. Clay, 975 S.W.2d 121, 143 (Mo. banc 1998). This conclusion applies all the more to the kind of investigation conducted by Dr. Galliher. More importantly, counsel would not know the need to conduct these investigations until the allegedly racially insensitive remarks were made during the Batson hearing after the trial had commenced. Only then did the issue of Judge Corrigan’s racial prejudice clearly present itself.
Furthermore, even had counsel conducted the kind of pre-trial investigation that Smulls, in hindsight, now claims was required, the investigation would have likely turned up as much evidence that Judge Corrigan was not biased as evidence that he was biased. The five criminal defense lawyers who practice regularly before Judge Corrigan testified unequivocally that their African-American clients had been treated fairly, and even Judge Campbell, who testified that he overheard the racist joke years ago, qualified his statement by then testifying that during the many years he had served with Judge Corrigan, he had never heard of a claim or allegation of racial bias made against him. Under these circumstances, counsel cannot be faulted for failing to move for Judge Corrigan’s disqualification before trial.
Whether counsel should have moved to disqualify Judge Corrigan after his comments at the Batson hearing is perhaps another question, and ultimately, the issue to be resolved is whether counsel should have attempted to disqualify Judge Corri-gan on the basis of his comments during the Batson hearing alone. Although this Court determined in the first Smulls opinion that those comments were racially insensitive, State v. Smulls, 935 S.W.2d at 26, Judge Corrigan’s disqualification from the Rule 29.15 proceeding was required because those comments were coupled with the several allegations of pre-trial, out-of-court misconduct and the likelihood that Judge Corrigan, himself, would be a witness for those allegations. Id. at 27.
The decision to disqualify a judge is a matter of trial strategy. State v. Ayers, 911 S.W.2d 648, 652 (Mo. banc 1995); see also Wilson v. State, 626 S.W.2d 243, 248-49 (Mo. banc 1982). As with all matters of trial strategy, appellate courts are properly deferential to trial counsel’s decisions. Lyons v. State, 39 [153]*153S.W.3d 32, 36 (Mo. banc 2001). In that regard, it may well be that trial counsel perceived that Judge Corrigan’s Batson comments were made innocuously. Further, counsel acknowledged that there was at least one important strategic reason to keep Judge Corrigan on this case: Judge Corrigan believed that the jury instruction that permitted the judge to impose the death penalty if the jury could not agree on punishment, MAI-CR3d 313.48B, was unconstitutional, and Judge Corrigan stated that he would have an extremely difficult time imposing the death penalty if the jury did not. On this record, counsel cannot be convicted of being ineffective for failing to disqualify Judge Corrigan.
Finally, hindsight shows that the decision not to disqualify Judge Corrigan did not result in prejudice. Smulls cannot point to any judicial decision that evidences Judge Corrigan’s alleged bias or in which Judge Corrigan’s alleged bias produced an unjust result. This Court expressed concern in its 1996 decision that Judge Corrigan’s refusal to acknowledge race raises “serious questions about his willingness to do what Batson requires,” Smulls, 935 S.W.2d at 26, and this Court wrote: “The trial court cannot add subtle burdens to the Batson process by refusing to take note of race where trial counsel properly places it at issue.” Id. However, a careful review of the record shows that Smulls’ Batson challenge was heard not once, but twice, and at the first hearing, Judge Corrigan did not dispute that Ms. Sidney was African-American. Indeed, the controversy did not arise until the second hearing on the second day when Judge Corrigan’s memory had faded and Ms. Sidney and the other jurors who were not selected were no longer present. Ultimately, this Court determined in the original appeal that the prosecutor’s preempto-ry strike of Ms. Sidney was not pretextual and that Judge Corrigan correctly denied the Batson challenge. Id. at 14-16. Smulls advances no evidence indicating otherwise. The simple fact is that Judge Corrigan’s skepticism at Smulls’ Batson hearing, whether honest or obstinate, did not prevent Smulls’ claims from being heard and did not prove that the outcome of that hearing or the trial as a whole was the product of the judge’s bias.
B. Disqualification Because of Retention Vote
Smulls next claims that his counsel was ineffective for failing to have Judge Corrigan disqualified because Judge Corri-gan was worried about his upcoming retention vote in the 1992 general election. Smulls explains that given that concern, Judge Corrigan would be unwilling to consider a life sentence instead of the death penalty because a willingness to consider a life sentence might erode support at the polls. This claim is frivolous. The 1992 general election was held before Smulls’ trial.
C. Failure to Present Gunshot Residue Evidence
Gunshot residue tests were performed on Smulls and his accomplice. No residue was detected on Smulls, and the test on his accomplice was inconclusive. During the first trial, the state’s expert, Dr. Rothove, was unavailable, and the parties agreed to a short stipulation regarding the test results. At the second trial, Smulls’ counsel subpoenaed Rothove, but did not call him, having just learned that he would not support the theory that the accomplice fired the shots. As we understand it, Smulls’ claim is that counsel did not interview Rothove in time to adjust strategy and that counsel was ineffective for failing to present the stipulation. Smulls now concedes that the stipulation [154]*154was not available on retrial and claims his counsel should have obtained an independent expert. This claim was not pled. Nevertheless, Smulls attempted to present the testimony of Donald Smith, a criminologist. Judge O’Brien gratuitously reviewed the claim, but rejected Smith’s testimony because Smith could not identify which of the two suspects was the shooter, did not sufficiently duplicate the state’s test, and was not otherwise credible.
Smulls must establish that his counsel was ineffective in failing to obtain an independent expert and that it is reasonably probable that the deficiency affected the outcome. White v. State, 939 S.W.2d at 895-96; State v. Twenter, 818 S.W.2d at 640. Smith testified that either one of the defendants could have been the shooter. However, in conducting his own tests, Smith did not attempt to obtain the same weapon used in the crime, and he admitted that different weapons of the same make and model can “kick off’ different residues. In addition, Smith was not certain he and the state used the same machine to conduct the tests. He also was unaware that Smulls struggled in wet grass with the police and continuously wiped his hands, which can remove residue. See Wainwright v. Lockhart, 80 F.3d 1226, 1230 (8th Cir.1996). Based upon these factors it cannot be said that it was clear error for the motion court to find Smith’s evidence lacking in credibility. See State v. Hall, 982 S.W.2d 675, 687-88 (Mo. banc 1998); Wainwright, 80 F.3d at 1230
D. Failure to Present Mitigating Circumstances
Smulls claims Judge O’Brien clearly erred in denying his claim that his counsel was ineffective for failing to interview and present certain mitigating witnesses during penalty phase. These witnesses would allegedly have testified that he was nonviolent, amicable, abandoned at childhood, impoverished, cared for his children, and that he was helpful to friends and relatives.
While counsel is required to investigate possible mitigating circumstances, Nunley, 923 S.W.2d at 924, there is nó absolute duty to present mitigating evidence. State v. Shurn, 866 S.W.2d 447, 472 (Mo. banc 1993). Furthermore, “[c]ounsel is not ineffective for not putting on cumulative evidence.” Skillicorn v. State, 22 S.W.3d 678, 683 (Mo. banc 2000).
Smulls presented five witnesses during the penalty phase: Dr. Wells Hively, a psychologist; Smulls’ pastor, who had known him since he was a child; a supervisor and a corrections officer at the jail where Smulls was incarcerated; and Smulls’ adopted father, who had raised him since he was a year and a half old. Dr. Hively explained that Smulls is depressed, has a dependent personality, and is not violent unless he is coerced. The pastor testified that Smulls is polite, respectful and not violent. The corrections supervisor and guard testified that he was a good worker and that he did not cause trouble. His father testified that Smulls was abandoned as a child and did not finish high school, and that he still cared for Smulls as he would his own blood.
Most of the witnesses and testimony Smulls claims his counsel should have presented would be cumulative of testimony that had already been presented. In addition, the motion court, which is in the best position to evaluate credibility, found that a number of these witnesses were not credible. They include Randy Edwards and Dennis Brown, who both arrived in court to testify with a list of typed questions with parenthetical answers; Crispin Smith, who had a “close relationship” with Smulls but supposedly did not know he was on parole; Maggie Cain, who knew [155]*155Smulls only from church; and Patricia Lee, who knew him only in passing. The motion court’s findings on this matter were not clearly erroneous. Rousan v. State, 48 S.W.3d at 589. Furthermore, in fight of the aggravating factors found by the jury, Smulls has not shown that the additional mitigating testimony would have produced a different result had it been presented at trial.
E. Smulls’ Decision Not to Testify
Smulls claims his counsel was ineffective for not advising him to testify. Smulls testified at his first trial, and the jury could not reach a verdict on the murder count. He claims this gives rise to a “reasonable probability” that he would not have been convicted had he testified at his second trial. See Rousan v. State, 48 S.W.3d at 581-82. “Advice of counsel that a defendant not testify, without more, is not incompetent when it might be considered sound trial strategy.” State v. Powell, 798 S.W.2d 709, 718 (Mo. banc 1990). Smulls has an extensive criminal history, which was a subject of cross-examination during the first trial and a probable subject of cross-examination during the second trial. This would have undercut his theory that he was not the ringleader of the robbery. In addition, the trial court discussed with him his decision not to testify. The argument that his testimony at the first trial caused the hung jury is speculative, and he has not demonstrated that his counsel’s decision was anything other than sound trial strategy. See State v. Chambers, 891 S.W.2d 93, 112 (Mo. banc 1994).
V. Denial of Rule 29.15 Claims Without an Evidentiary Hearing
In post-conviction relief motions,
[a]n appellant is entitled to an evidentia-ry hearing only if his motion meets three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must have resulted in prejudice.
Morrow v. State, 21 S.W.3d 819, 823 (Mo.2000).
A. Prosecutor’s Motive to Seek the Death Penalty
Smulls claims his trial counsel was ineffective for failing to investigate and challenge the prosecutor’s motive to seek the death penalty. Again, to establish ineffective assistance, Smulls must describe the information his attorney failed to discover, allege that a reasonable investigation would have uncovered the information, and prove the information would have aided his position. White v. State, 939 S.W.2d at 895-96; State v. Twenter, 818 S.W.2d at 640. Further, “[t]o show that the prosecutor sought the death penalty for racially discriminatory reasons,” defendant must prove that the prosecutor’s decision had “a discriminatory effect” on defendant and that the decision was “motivated by a discriminatory purpose.” Morrow v. State, 21 S.W.3d at 825. Finally, movant “must offer clear proof of discrimination in his own case.” State v. Brooks, 960 S.W.2d at 499.
Smulls’ motion alleged that: (1) he is an economically disadvantaged African-American, (2) his victims were Caucasian and the crime occurred in an affluent Caucasian suburb, (3) evidence would be presented that in factually similar homicide cases with Caucasian defendants the state did not seek the death penalty, (4) the death penalty was sought in his case because he is African-American, (5) reasonably competent counsel would have investigated and raised this matter, and (6) he [156]*156was prejudiced. Smulls claims that fear of African-American males because they are “causally linked to crime” motivated the prosecutor to seek the death penalty.
Smulls’ evidence in support of these allegations consisted of a “Task Force Report on the Status of the African-American Male in Missouri” attached to his pleadings, which purportedly showed in capital cases a “glaring racial difference” that “results from the discretionary decisions of prosecutors.” This evidence fails to prove purposeful discrimination specific to his case. Morrow v. State, 21 S.W.3d at 825. Furthermore, where, as here, the facts of the case strongly support the existence of statutory aggravating factors, not to mention Smulls’ extensive criminal history, the likely motivation for seeking the death penalty is the strength of the prosecution’s case. See id.; State v. Brooks, 960 S.W.2d at 499-500. The record does not warrant an evidentiary hearing, much less a finding of ineffective assistance of counsel.
Smulls also takes issue with the motion court’s refusal to allow interrogatories on this claim. Because the determination to deny the claim without an eviden-tiary hearing was properly made solely on “the motion and the files and records of the case,” discovery before the determination of which claims warrant an evidentia-ry hearing would be premature. See State v. Ferguson, 20 S.W.3d at 504. Discovery after denial of such a claim is unwarranted because the discovery is no longer “relevant to the subject matter involved in the pending action.” Id.
B.Dr. Hively’s Testimony
Smulls claims his counsel erred in calling Dr. Wells Hively during penalty phase because Dr. Hively was not the author of Smulls’ psychological report, which was prepared as evidence in mitigation. The expert who prepared the report was unavailable, and Dr. Hively, who worked with the expert on the case, was called as a replacement. Counsel cannot be faulted because she had little choice but to call another witness familiar with the report. In addition, trial counsel’s testimony to the contrary notwithstanding, it is unlikely that Smulls suffered prejudice from counsel’s choice to present a different expert than the one who prepared the report. Doctor Hively testified that his entire office, including himself, was involved in the preparation of the report, that he examined Smulls four times, and that his opinion was based upon those examinations as well as the results of psychological tests and police reports. The motion court’s denial of this claim was not clearly erroneous.
Smulls also alleges that instead of calling Dr. Hively, his counsel should have called a “comprehensive mental health expert.” Counsel is not ineffective for failing to shop around for additional experts. Lyons v. State, 39 S.W.3d at 41.
C. Penalty Phase Opening Statement
Smulls claims his counsel was ineffective for commenting, during opening statement in penalty phase, that Smulls could not find a job because of a disability and turned to a life of crime as an easy way out. Smulls’ eleven prior felony convictions were admissible to impeach his credibility if he took the stand and admissible regardless as an aggravating factor in penalty phase. It is a common and proper defense strategy to mention convictions first in order to soften the blow. See Richardson v. State, 577 S.W.2d 653, 655 (Mo. banc 1979). Counsel was not ineffective in this regard.
D. Failure to Object to Instructions
Smulls claims his counsel was ineffective for failing to object to allegedly confusing [157]*157punishment phase instructions and to present survey data on the accuracy of juror comprehension. Smuils concedes that this Court has recently rejected such a claim in State v. Deck, 994 S.W.2d 527, 542-48 (Mo. banc 1999). The claim is denied on that basis.
E. Voir Dire
Smuils claims his counsel was ineffective for failing to object when the trial court stated that, “theoretically” speaking, the defendant does not have the burden to prove that he should not be put to death. The record reflects an extensive dialogue with the juror in question, during which the trial court made it clear that the state bore the burden. Taken in context, and considering the person did not serve on the jury, the court’s explanation did not misallocate the burden, and any claim the jury was tainted is speculative.
VI. Claims Denied on Direct Appeal
Smuils’ motion also raises a number of ineffective assistance of counsel claims in which the underlying issues were denied by this court on direct appeal: (1) failure to prove the prosecutor’s reasons for striking Ms. Sidney were pretextual, State v. Smulls, 935 S.W.2d at 14-16; (2) failure to move to quash the entire venire because a juror who had been stricken was permitted to stay and answer questions, id. at 19; (3) failure to present as a mitigating factor that the accomplice admitted to shooting the victims, id. at 20-21; (4) failing to move for a mistrial when the jury expressed concern for its safety in notes sent to the court during guilt phase deliberations, id. at 22. Counsel cannot be ineffective for failing to raise non-meritorious claims.
VII. Conclusion
The judgment is affirmed.
HOLSTEIN, BENTON and PRICE, JJ., concur.
WOLFF, J., concurs in separate opinion filed.
LAURA DENVIR STITH, J., concurs in part and dissents in part in separate opinion filed.
WHITE, J., concurs in opinion of LAURA DENVIR STITH, J.