In the Missouri Court of Appeals Eastern District DIVISION THREE
TROY CALLAHAN, ) No. ED111206 ) Appellant, ) Appeal from the Circuit Court of ) St. Francois County vs. ) 21SF-CC00156 ) STATE OF MISSOURI, ) Honorable Wendy W. Horn ) Respondent. ) Filed: October 31, 2023
Before Lisa P. Page, P.J., Gary M. Gaertner, Jr., J., and Angela T. Quigless, J.
Troy A. Callahan (Movant) appeals from the motion court’s judgment denying him post-
conviction relief pursuant to Rule 29.15 1 after an evidentiary hearing. We affirm.
Background
Movant was convicted of three counts of first-degree statutory sodomy of his
granddaughter (Victim), who was less than twelve years old, following a jury trial in St. Francois
County. During trial, the State presented evidence including testimony from the child, her
mother, and the Children’s Advocacy Center (CAC) forensic interviewer (Interviewer). The
State played the video recording of Victim’s forensic interview, and entered into evidence
Victim’s anatomical drawings used to show where Movant touched and hurt her. Movant did not
testify and presented no evidence. The jury found Movant guilty and the court entered judgment
1 All references to Rules are to Missouri Supreme Court Rules (2021). upon their verdict and sentenced Movant as a prior and persistent felony offender to consecutive
terms of thirty years of imprisonment on each of the three counts, for a total of ninety years.
This court affirmed his conviction and sentence on March 30, 2021. State v. Callahan, 628
S.W.3d 666 (Mo. App. E.D. 2021).
Movant filed a timely pro se motion for post-conviction relief. Post-conviction counsel
(PCR Counsel) was appointed for him and timely filed an amended motion for post-conviction
relief. The motion court held an evidentiary hearing on Movant’s amended motion to vacate, set
aside or correct the judgment on August 19, 2022. Movant testified at the hearing and claimed
his trial defense before the jury was that he did not commit the crime, thus, whether the jury
believed the complaining witness was critical. Movant’s trial counsel (Trial Counsel) also
testified. She agreed Movant’s defense was that the crimes did not occur. Trial Counsel recalled
that the complaining witness testified, with some corroboration by her mother, that Movant had
lived in her house, but there was no forensic or physical evidence in the case. Thus, Trial
Counsel agreed credibility was critical to the case.
Trial Counsel did not independently recall the issue of credibility raised during voir dire
but had some recollection after reading the trial transcript. When asked if the State’s line of
questioning was objectionable about whether one witness’s testimony is enough for the jury to
find the defendant guilty, Trial Counsel testified, “Looking back, yes.” Movant’s PCR Counsel
asked Trial Counsel whether she objected at the time; Trial Counsel responded, “No. According
to the record, I didn’t lodge an objection.” The questions by PCR Counsel and answers by Trial
Counsel continued as follows:
[PCR Counsel]: Okay. Was there a specific reason that you didn’t object?
[Trial Counsel]: Not that I can recall.
2 PCR Counsel asked whether Trial Counsel objected to any of the remaining questions.
Trial Counsel answered she did not, but “I think at one point in time when a specific juror was
questioned I may have asked to be able to clarify, and I think the Court stepped in and asked the
clarifying question, but I didn’t lodge any objections.”
They continued:
[PCR Counsel]: But you believe that this line of questioning was objectionable?
[Trial Counsel]: Yes, I think I could have objected.
[PCR Counsel]: All right. And why do you believe that this was objectionable?
[Trial Counsel]: Because I think, looking back, that [the prosecutor] was mischaracterizing the standard of proof necessary in a criminal case.
[PCR Counsel]: Would you say that [the prosecutor] was asking the jurors to commit to a certain stance on the questions that he was asking? ... From the way that [the prosecutor] phrased these questions, was it your understanding that the jurors would have to commit to one – to believe that witness?
[Trial Counsel]: One of the questions on page 64 [the prosecutor] asks is, “If all I have is [Victim’s] testimony regarding the allegations in this case, is there anybody who cannot find the defendant guilty if I didn’t have any other evidence but [Victim’s] own testimony?” I would think that’s looking for a commitment.
[PCR Counsel]: And he uses the complaining witness’s name there, correct?
[Trial Counsel]: Yes.
[PCR Counsel]: So would you say that this is specific to that particular witness?
[PCR Counsel]: And does [the prosecutor] – do you remember if [the prosecutor] goes into the facts of the case at all?
[Trial Counsel]: I don’t recall.
[PCR Counsel]: Now, were these questions isolated to voir dire or did they come up at any point during the trial?
3 [Trial Counsel]: I don’t particularly recall.
[PCR Counsel]: Would it help your recollection to see the transcript?
PCR Counsel pointed out in the transcript where the prosecutor mentioned the topic again
in closing argument, reminding Trial Counsel that the prosecutor stated, “I mean, we discussed
that in voir dire and I asked everyone if they would require physical evidence before they could
determine his guilt and nobody raised their hand, so I’m asking you to stick with me on that.”
PCR Counsel asked Trial Counsel if she understood that to mean the prosecutor was asking the
jury to reassert their commitment from the voir dire, and Trial Counsel answered, “yes.” On
cross-examination, Trial Counsel agreed that the questions determining whether a juror could
find guilt without physical evidence were also beneficial to Movant, and the court gave the
standard instruction on assessing credibility. She agreed the standard of proof “beyond a
reasonable doubt” was discussed with the jurors too.
Trial Counsel was also questioned about Interviewer, who testified at trial because she
had conducted an interview of Victim at the CAC. When asked if Trial Counsel remembered
Interviewer’s testimony regarding the difference between accidental and purposeful disclosures
from children, Trial Counsel said she did not independently recall, but after reviewing the
transcript, she thought Interviewer had testified that accidental disclosure would more likely be
true, but she did not remember exactly. Trial Counsel said Interviewer’s statement that Victim’s
disclosure was accidental was objectionable because, “looking back on it, it tries to bolster the
credibility of [Victim’s] testimony, as well as it kind of invades the province of the jury on
whether or not she’s a credible witness.” Trial Counsel again agreed witness credibility here was
“everything.” However, “[f]rom the record it appears that [Trial Counsel] didn’t [object],” and
4 said, “there’s no particular reason.” Instead, Trial Counsel recalled taking the opportunity to
cross-examine Interviewer and confirmed with her that it was not her job to assess whether or not
a child was telling the truth, to raise some doubt as to her credibility.
The motion court received proposed findings of fact and conclusions of law from each
side, then issued its judgment denying Movant relief. The motion court held that Trial Counsel’s
decision not to object to specific questions during voir dire was “the result of reasonable
professional judgment based on Trial Counsel’s trial strategy” where counsel testified “it would
certainly be beneficial to know which potential jurors would only require the testimony of”
Victim. The motion court also noted “several times during the course of [voir dire], the Court
instructed the jury panel on evaluating the credibility of witnesses.”
Additionally, the motion court held that Trial Counsel’s decision “not to object to the
testimony of [Interviewer] was not ineffective, but rather, this was the result of reasonable
professional judgment based upon Trial Counsel’s trial strategy.” The court noted that Trial
Counsel “took the opportunity to impeach [Interviewer’s] testimony in an attempt to bolster
[Movant’s] case at trial.”
In conclusion, the motion court held that Movant “failed to prove that Trial Counsel was
ineffective and that her ineffectiveness prejudiced” Movant. Movant appeals.
Discussion
Movant raises three points on appeal, each arguing the motion court clearly erred in
denying his motion for post-conviction relief pursuant to Rule 29.15, after an evidentiary
hearing, and violated his right to due process of law, effective assistance of counsel, and a fair
trial under the Missouri Constitution Art. I, Sections 10 and 18(a), and the Fifth, Sixth, and
Fourteenth Amendments to the U.S. Constitution. Movant’s first point alleges the motion court
5 clearly erred in denying his claim that Trial Counsel was ineffective for failing to object during
voir dire because the prosecutor’s questions improperly elicited a commitment from the jury
panel to react a specific way when presented with certain evidence. Second, Movant argues the
motion court clearly erred in denying his claim that Trial Counsel was ineffective for failing to
object to Interviewer’s improper testimony that a hypothetical disclosure under identical
circumstances to Victim arose accidentally and therefore was less likely to be fabricated and
allowed the jury to consider an expert opinion bolstering the credibility of Victim. Third and
finally, Movant alleges the motion court clearly erred in accepting the State’s argumentative
proposed findings of fact and conclusions of law via “rubber stamp,” which contained factual
inaccuracies and showed no sign of independent examination or analysis of the relevant law and
facts.
Standard of Review
A motion court’s judgment is presumed correct and will be overturned only when either
its findings of fact or its conclusions of law are clearly erroneous. McLaughlin v. State, 378
S.W.3d 328, 336-37 (Mo. banc 2012); Rule 29.15(k). To overturn a motion court’s ruling, the
ruling must leave the appellate court with a “definite and firm impression that a mistake has been
made.” Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009) (internal quotations omitted).
To be entitled to post-conviction relief for ineffective assistance of counsel, a defendant
must satisfy the two-prong Strickland test. McLaughlin, 378 S.W.3d at 337 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). First, the defendant must show his attorney failed to
exercise the level of skill and diligence that a reasonably competent attorney would exercise in a
similar situation. Strickland, 466 U.S. at 687. Second, the trial counsel’s failure must prejudice
6 the defendant. Id. A defendant must show both prongs by a preponderance of the evidence to
prove ineffective assistance of counsel. McLaughlin, 378 S.W.3d at 337.
The performance prong of the Strickland test is met by overcoming a strong presumption
that counsel’s conduct was reasonable and effective. Id. Substantial deference must be given to
counsel’s judgment. Strickland, 466 U.S. at 689. The movant must point to “specific acts or
omissions of counsel that, in light of all circumstances, fell outside the wide range of
professional competent assistance.” McLaughlin, 378 S.W.3d at 337 (internal quotation
omitted). The choice of one reasonable trial strategy over another is not ineffective assistance,
but an unreasonable decision may be. Zink, 278 S.W.3d at 176. “The benchmark for judging
any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. To fairly assess attorney performance, we must make every
effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Id. at 689. “The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices
or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland,
466 U.S. at 690).
To satisfy the prejudice prong of the Strickland test, the movant must demonstrate that,
absent the claimed error, there is a reasonable probability that the outcome would be different.
Strickland, 466 U.S. at 694. This exists when there is “‘a probability sufficient to undermine
confidence in the outcome.’” Anderson v. State, 196 S.W.3d 28, 33-34 (Mo. banc 2006)
(quoting Strickland, 466 U.S. at 694).
7 Point I
Movant’s first point alleges the motion court clearly erred in denying his claim that Trial
Counsel was ineffective for failing to object to the prosecutor’s inquiry during voir dire because
the prosecutor’s questions improperly elicited a commitment from the jury panel to react a
specific way when presented with certain evidence. Further, he contends because Trial Counsel
failed to make a meritorious objection to the prosecutor’s line of inquiry, there is a reasonable
probability that but for Trial Counsel’s error, the jury would have acquitted Movant of all
charges.
Movant argues State v. Crew, 803 S.W.2d 669 (Mo. App. E.D. 1991), is applicable in
holding “[i]t is reversible error for an attorney during voir dire to attempt to obtain from the
venire a commitment or a pledge to act in a specific way if certain facts are elicited or certain
contingencies arise at trial.” Id. (italics added). Crew was a direct appeal in which the defendant
objected to the prosecutor’s statement that the State may bring in one witness to provide
evidence of all the elements of the crime. Id. at 670. The court deemed the prosecutor’s
questions to the venire panel were appropriate where they were intended to determine which
panel members had preconceived prejudice against deciding the issues on the merits based solely
on the testimony of a single eye-witness, but no panel members provided answers. Therefore, no
one committed to act one way or another, and nothing in the record indicated a reduction in the
burden of proof. Id. at 670. Movant argues Crew differs in that the State here elicited several
responses from venire members to discover who else might require more evidence than the
testimony of one eye-witness, in an attempt to precondition the seated jury’s response to its
evidence, and only vaguely referenced the State’s burden of proof. Movant contends Trial
Counsel was ineffective because a reasonably competent attorney would have objected to the
8 prosecutor’s improper line of questioning or would have requested a clarification to explain the
State’s burden of proof.
However, in another direct appeal, State v. Joliff, 867 S.W.2d 256, 260 (Mo. App. E.D.
1993), the court held that although it is reversible error for an attorney to attempt during voir dire
to obtain a commitment or pledge to act in a specific way if certain facts are elicited or certain
contingencies arise at trial, “counsel may probe the venire to determine preconceived prejudices
that would prevent the jurors from following the court’s instructions.” The Joliff court did not
find a manifest abuse of discretion in the trial court’s ruling on the defense’s objection during
voir dire, permitting the prosecutor to ask questions whether the venire would require more than
one witness or a certain type of evidence to convict. Id. The Joliff court specifically detailed,
“The state could have directly asked the venire whether they could find a defendant guilty if they
believed the testimony of a single eye witness. A question in that form would not commit any
juror to a course of conduct.” Id.
Moreover, while those cases demonstrate a lack of error in the convictions and sentences,
in post-conviction matters we emphasize, too, that “[c]ounsel will not be deemed ineffective for
reasonable choices of trial strategy, no matter how ill-fated they may appear in hindsight.”
Bracken v. State, 453 S.W.3d 866, 872 (Mo. App. E.D. 2015). The presumption of reasonable
trial strategy is not overcome by testimony that trial counsel does not recall her trial strategy.
Rios v. State, 368 S.W.3d 301, 311 (Mo. App. W.D. 2012).
Upon reviewing the record, we note that the State prefaced its voir dire questions
regarding one child witness upon witness credibility and assessing her truthfulness or
untruthfulness. At one point during the questioning, the court told the venire panel that they
could not discuss what the evidence was going to be or who would be called to testify, but they
9 were only trying to understand attitudes on various issues in the way the questions were asked.
Later in voir dire, Trial Counsel emphasized the State’s burden of proof and also asked the
venire panel whether anyone felt the State’s burden should be higher than proof beyond a
reasonable doubt, more than just firmly convinced.
During the evidentiary hearing, Trial Counsel acknowledged that she later recognized the
impropriety of the single witness questions and believed she should have objected, and also
denied that her failure to object was a conscious decision. However, Trial Counsel had made
efforts to emphasize the State’s burden of proof beyond a reasonable doubt during voir dire, and
her judgment in hindsight does not deem her ineffective. Moreover, under Joliff, we find the
State’s questioning for preconceived prejudices was indeed proper and also benefited Movant.
867 S.W.2d at 260. Counsel is not ineffective for failing to make non-meritorious objections.
State v. Six, 805 S.W.2d 159, 167 (Mo. banc 1991). The first prong of Strickland is not met
because Movant cannot show Trial Counsel failed to exercise the level of skill and diligence that
a reasonably competent attorney would exercise in a similar situation. McLaughlin, 378 S.W.3d
at 337. The motion court’s findings and conclusions are not clearly erroneous. Movant’s first
point is denied.
Point II
In his second point, Movant argues the motion court clearly erred in denying his claim
that Trial Counsel was ineffective for failing to object to Interviewer’s improper testimony that a
hypothetical disclosure under circumstances identical to Victim here arose accidentally and
therefore was less likely to be fabricated, because Trial Counsel’s failure to object allowed the
jury to consider an expert opinion bolstering the credibility of Victim’s testimony. He contends
that because Trial Counsel failed to make a meritorious objection to Interviewer’s improper
10 opinion testimony, there is a reasonable probability that but for Trial Counsel’s error, the jury
would have acquitted him of all charges.
During trial, Interviewer testified that child disclosures of sexual abuse are categorized as
“accidental” and “purposeful.” An “accidental” disclosure could “be someone finding a text
message or a note or a picture or something where a child wasn’t intending for that information
to be found out.” A “purposeful” disclosure could “be a child coming to a trusted individual and
making a statement, saying, ‘I need to tell you something.’” When asked how she would
categorize a disclosure made when “a mother’s trying to find out an injury to a child[,]”
Interviewer testified that “on our referral we also have a section called ‘Questioning,’ so that the
person sending the referral can check whether it was a question being asked of the child.”
Interviewer added, “that would be probably more accidental because a child’s not – children
don’t want to, you know, not tell their parent the truth and tell what’s going on, so I would say it
was more accidental.”
During a thorough cross-examination, Interviewer answered that it was not her job to
determine the truthfulness of the child she interviews. Instead, the Children’s Division
investigator and law enforcement officer often watch the interview in real time, which was the
case with Victim’s interview. She said she tries to determine circumstances to help investigators
determine the truth of the matter. Trial Counsel further questioned Interviewer about her lack of
follow-up questions and her failure to interview Victim’s brother.
Although “particularized testimony concerning the alleged victim’s credibility” is
impermissible, a child interviewer is allowed to provide general testimony describing behaviors
and other characteristics commonly observed in victims of sexual abuse, which assists the jury in
11 understanding the behavior of sexually abused children. State v. Thomas, 290 S.W.3d 129, 135
(Mo. App. S.D. 2009).
Again, as in point one, a defendant must overcome a strong presumption that counsel’s
performance was sound trial strategy, no matter how it appears under the lens of hindsight.
Bracken, 453 S.W.3d at 872. The presumption of reasonable trial strategy is not overcome by
testimony that trial counsel does not recall her trial strategy. Rios, 368 S.W.3d at 311. When a
seasoned trial counsel does not object to otherwise improper questions or arguments, it may be
attributed to trial strategy, especially because frequent objections tend to irritate the jury and
highlight statements complained of, resulting in more harm than good. State v. Tokar, 918
S.W.2d 753, 768 (Mo. banc 1996).
During the evidentiary hearing, Trial Counsel did not independently recall Interviewer’s
trial testimony, but thought Interviewer made an objectionable statement that Victim’s disclosure
was accidental because, “looking back on it, it tries to bolster the credibility of [Victim’s]
testimony, as well as it kind of invades the province of the jury on whether or not she’s a credible
witness.” Trial Counsel agreed the witness’s credibility here was “everything.” However,
“[f]rom the record it appears that [Trial Counsel] didn’t [object],” and said “there’s no particular
reason.” Instead, Trial Counsel recalled taking the opportunity to cross-examine her and
confirmed with Interviewer that it was not her job to assess whether or not a child was telling the
truth, which was intended to raise doubt as to her credibility.
Thus, even though Trial Counsel vaguely recalled the testimony at issue, and did not
know a reason why she did not object, the record indicates her effective trial strategy was to
cross-examine the witness to raise doubt as to her credibility. Interviewer did not testify that one
category of disclosure was more credible than another, nor did she comment on Victim’s
12 credibility. Accordingly, Trial Counsel’s failure to raise a non-meritorious objection does not
constitute ineffective assistance of counsel. Six, 805 S.W.2d at 167. A reasonably competent
attorney under similar circumstances could have opted to cross-examine the witness rather than
object to her direct testimony. Movant has not demonstrated the first prong of the Strickland test
is met. The motion court’s judgment finding Trial Counsel impeached Interviewer’s testimony
in an attempt to bolster Movant’s case at trial was not clearly erroneous. Movant’s second point
is denied.
Point III
Third and finally, Movant alleges the motion court clearly erred in accepting the State’s
argumentative proposed findings of fact and conclusions of law via “rubber stamp” because the
findings of fact and conclusions of law filed by the motion court contained factual inaccuracies
and showed no sign of independent examination or analysis of the relevant law and facts.
The Missouri Supreme Court has held “that it is not per se error for a trial judge to adopt
without change the wording of a party’s suggestions or of proposed findings of fact and
conclusions of law,” but it also warned against doing so because “advocates are prone to
excesses of rhetoric and lengthy recitals of evidence favorable to their side but which ignore
proper evidence or inferences from evidence favorable to the other party.” Weeks v. State, 140
S.W.3d 39, 49 (Mo. banc 2004) (internal citation omitted). However, this common practice is
constitutional “[a]s long as the court thoughtfully and carefully considers the parties’ proposed
findings and agrees with the content. . . .” State v. Kenley, 952 S.W.2d 250, 261 (Mo. banc
1997); Skillicorn v. State, 22 S.W.3d 678, 690 (Mo. banc 2000).
Movant argues the motion court’s adoption of the State’s proposed order without any
alterations is error because it contains several erroneous determinations as Movant pointed out in
13 points one and two. We do not condone this practice, especially the motion court’s failure to
properly denominate the order as opposed to leaving it titled “Respondent’s Proposed Findings
of Fact, Conclusions of Law and Order.” However, based on our review of the record and
analysis in points one and two, supra, we find the motion court’s judgment was supported by the
evidence, and nothing in the record supports an argument that the court did not “thoughtfully and
carefully” concur with the State’s proposed judgment it adopted. The motion court’s judgment is
not clearly erroneous. Movant’s third point is denied.
Conclusion
The motion court’s judgment is affirmed.
______________________________ Lisa P. Page, Presiding Judge Gary M. Gaertner, Jr., Judge and Angela T. Quigless, Judge concur.