In the Missouri Court of Appeals Eastern District DIVISION TWO
XAVIER PERKINS, ) No. ED111285 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) Cause No. 2022-CC09684 ) STATE OF MISSOURI, ) Honorable Christopher E. McGraugh ) Respondent. ) Filed: December 12, 2023
Introduction
Xavier Perkins appeals the motion court’s judgment denying his amended Rule 29.15
motion for post-conviction relief following an evidentiary hearing. 1 In his sole point on appeal,
Perkins argues the motion court erred in denying his amended motion because trial counsel was
ineffective for failing to call a witness to support his alibi at trial. We affirm the judgment of the
motion court.
Factual and Procedural Background
Following a jury trial, Perkins was convicted of one count of murder in the first degree,
one count of attempted robbery in the first degree, and two counts of armed criminal action. The
evidence presented at trial was as follows.
1 All Rule references are to the Missouri Supreme Court Rules (2022), unless otherwise indicated. Perkins was living in an apartment complex in O'Fallon, Missouri, in September 2016.
Also living in the same apartment complex were D.D., R.H., and L.C. Another person, T.F., was
staying with Perkins. T.F. owned a pistol that he kept under his mattress in Perkins’s apartment
of which Perkins was aware. T.F. also owned a Chevrolet Cruze, which he often let Perkins and
others borrow.
On the evening of September 12, 2016, Perkins, D.D., R.H., and L.C. borrowed T.F.’s
car. The group picked up a fifth individual, J.S. and then drove around St. Louis, looking for
marijuana and, as D.D. testified, “just doing dumb – dumb stuff,” such as trying to steal cars.
D.D. was driving the car when he and the others saw Victim walking down the street.
The group decided to rob Victim. D.D. stopped the car, and Perkins and J.S. got out and
followed Victim down the street. L.C., who was still sitting in the car, heard Victim say, “God
wouldn't want you to do this.” He then heard a gunshot and turned in time to see Victim fall to
the ground and Perkins standing near her body with a gun in his hand. L.C. watched J.S. run
around the corner and then L.C. jumped out of the car and ran down the street. D.D. and R.H.
remained in the vehicle, and D.D. watched Perkins return to the car, still holding the gun.
J.S. returned to the car and D.D. drove him home before the group went to look for L.C.
D.D. located L.C. at a nearby gas station. D.D., L.C., R.H., and Perkins then drove around and
smoked marijuana before returning to O'Fallon, Missouri. On the drive back, Perkins repeatedly
asked L.C. if the two of them were “cool.” L.C. asked Perkins where he had shot Victim, and
Perkins told L.C., “I shot her in the chest.” A couple of days after the shooting, Perkins told D.D.
that he was the one who shot Victim, and if anyone in the group were to get caught, Perkins
would say what happened and “free [them] up.”
2 A few days later, L.C. became fearful after he saw a report of the murder on the news.
L.C. told a high school classmate what he had witnessed. The classmate told the school's
resource officer, who relayed the information to the homicide department investigating Victim's
murder. This information led to the arrest of Perkins.
A jury found Perkins guilty as charged and he was sentenced to concurrent sentences of
life in prison without the possibility of parole on the charge of first-degree murder and the
accompanying armed criminal action, and ten years each on attempted first-degree robbery and
the accompanying armed criminal action. This Court affirmed Perkins’s conviction in State v.
Perkins, 600 S.W.3d 838 (Mo. App. E.D. 2020).
On September 2, 2020, Perkins timely filed his pro se Rule 29.15 motion. Post-
conviction counsel was appointed on September 8, 2020 and an amended motion was timely
filed on January 6, 2021. In his motion, Perkins argued that trial counsel was ineffective for
failing to investigate and call multiple witnesses to testify on his behalf at trial, including
Perkins’s girlfriend, S.T., whom Perkins alleged he was with at the time of the crime. The
motion court granted Perkins’s request for an evidentiary hearing.
Only trial counsel testified at the evidentiary hearing. Perkins’s testimony was admitted by
deposition. Post-conviction counsel subpoenaed S.T. to testify at the hearing but was unable to
effectuate personal service upon her. The motion court granted a continuance so that S.T. could be
deposed, but S.T. failed to appear for a deposition.
On November 18, 2022, the motion court entered its findings of facts and conclusion of
law denying Perkins’s motion. Perkins appeals.
3 Standard of Review
Appellate review of a judgment denying a Rule 29.15 motion for post-conviction relief is
limited to whether the motion court's findings of fact and conclusions of law are clearly
erroneous. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); Rule 29.15(k). The motion
court's findings and conclusions are clearly erroneous only if a full review of the record leaves
the reviewing court with “the definite and firm impression that a mistake has been made.” Moore
v. State, 458 S.W.3d 822, 829 (Mo. banc 2015). The motion court's findings are presumed
correct. McLaughlin v. State, 378 S.W.3d 328, 336–37 (Mo. banc 2012). A movant has the
burden to show by a preponderance of the evidence that the motion court clearly erred in its
ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).
Discussion
In his sole point, Perkins argues the motion court erred in denying his amended motion
because trial counsel was ineffective for failing to investigate and call his girlfriend as a witness
at trial to support his alibi. Specifically, Perkins asserts that counsel’s failure to act as reasonably
competent counsel deprived him of a viable alibi defense. Perkins alleges, but for counsel’s
failure, there is a reasonable probability that he would not have been convicted.
To succeed on a claim of ineffective assistance of counsel, a movant must show by a
preponderance of the evidence facts, not mere conclusions, demonstrating: (1) counsel failed to
conform to the degree of skill, care, and diligence of a reasonably competent attorney under
similar circumstances, and (2) counsel's deficient performance prejudiced the movant. Strickland
v. Washington, 466 U.S. 668, 687 (1984); McLaughlin, 378 S.W.3d at 337. If a movant fails to
satisfy either element of the test, they are not entitled to relief. Creighton v. State, 520 S.W.3d
416, 422 (Mo. banc 2017).
4 “A movant must overcome the strong presumption that trial counsel's conduct was
reasonable and effective.” Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (citing Davis v.
State, 486 S.W.3d 898, 906 (Mo. banc 2016) (internal quotations omitted)). “To overcome this
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In the Missouri Court of Appeals Eastern District DIVISION TWO
XAVIER PERKINS, ) No. ED111285 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis v. ) Cause No. 2022-CC09684 ) STATE OF MISSOURI, ) Honorable Christopher E. McGraugh ) Respondent. ) Filed: December 12, 2023
Introduction
Xavier Perkins appeals the motion court’s judgment denying his amended Rule 29.15
motion for post-conviction relief following an evidentiary hearing. 1 In his sole point on appeal,
Perkins argues the motion court erred in denying his amended motion because trial counsel was
ineffective for failing to call a witness to support his alibi at trial. We affirm the judgment of the
motion court.
Factual and Procedural Background
Following a jury trial, Perkins was convicted of one count of murder in the first degree,
one count of attempted robbery in the first degree, and two counts of armed criminal action. The
evidence presented at trial was as follows.
1 All Rule references are to the Missouri Supreme Court Rules (2022), unless otherwise indicated. Perkins was living in an apartment complex in O'Fallon, Missouri, in September 2016.
Also living in the same apartment complex were D.D., R.H., and L.C. Another person, T.F., was
staying with Perkins. T.F. owned a pistol that he kept under his mattress in Perkins’s apartment
of which Perkins was aware. T.F. also owned a Chevrolet Cruze, which he often let Perkins and
others borrow.
On the evening of September 12, 2016, Perkins, D.D., R.H., and L.C. borrowed T.F.’s
car. The group picked up a fifth individual, J.S. and then drove around St. Louis, looking for
marijuana and, as D.D. testified, “just doing dumb – dumb stuff,” such as trying to steal cars.
D.D. was driving the car when he and the others saw Victim walking down the street.
The group decided to rob Victim. D.D. stopped the car, and Perkins and J.S. got out and
followed Victim down the street. L.C., who was still sitting in the car, heard Victim say, “God
wouldn't want you to do this.” He then heard a gunshot and turned in time to see Victim fall to
the ground and Perkins standing near her body with a gun in his hand. L.C. watched J.S. run
around the corner and then L.C. jumped out of the car and ran down the street. D.D. and R.H.
remained in the vehicle, and D.D. watched Perkins return to the car, still holding the gun.
J.S. returned to the car and D.D. drove him home before the group went to look for L.C.
D.D. located L.C. at a nearby gas station. D.D., L.C., R.H., and Perkins then drove around and
smoked marijuana before returning to O'Fallon, Missouri. On the drive back, Perkins repeatedly
asked L.C. if the two of them were “cool.” L.C. asked Perkins where he had shot Victim, and
Perkins told L.C., “I shot her in the chest.” A couple of days after the shooting, Perkins told D.D.
that he was the one who shot Victim, and if anyone in the group were to get caught, Perkins
would say what happened and “free [them] up.”
2 A few days later, L.C. became fearful after he saw a report of the murder on the news.
L.C. told a high school classmate what he had witnessed. The classmate told the school's
resource officer, who relayed the information to the homicide department investigating Victim's
murder. This information led to the arrest of Perkins.
A jury found Perkins guilty as charged and he was sentenced to concurrent sentences of
life in prison without the possibility of parole on the charge of first-degree murder and the
accompanying armed criminal action, and ten years each on attempted first-degree robbery and
the accompanying armed criminal action. This Court affirmed Perkins’s conviction in State v.
Perkins, 600 S.W.3d 838 (Mo. App. E.D. 2020).
On September 2, 2020, Perkins timely filed his pro se Rule 29.15 motion. Post-
conviction counsel was appointed on September 8, 2020 and an amended motion was timely
filed on January 6, 2021. In his motion, Perkins argued that trial counsel was ineffective for
failing to investigate and call multiple witnesses to testify on his behalf at trial, including
Perkins’s girlfriend, S.T., whom Perkins alleged he was with at the time of the crime. The
motion court granted Perkins’s request for an evidentiary hearing.
Only trial counsel testified at the evidentiary hearing. Perkins’s testimony was admitted by
deposition. Post-conviction counsel subpoenaed S.T. to testify at the hearing but was unable to
effectuate personal service upon her. The motion court granted a continuance so that S.T. could be
deposed, but S.T. failed to appear for a deposition.
On November 18, 2022, the motion court entered its findings of facts and conclusion of
law denying Perkins’s motion. Perkins appeals.
3 Standard of Review
Appellate review of a judgment denying a Rule 29.15 motion for post-conviction relief is
limited to whether the motion court's findings of fact and conclusions of law are clearly
erroneous. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); Rule 29.15(k). The motion
court's findings and conclusions are clearly erroneous only if a full review of the record leaves
the reviewing court with “the definite and firm impression that a mistake has been made.” Moore
v. State, 458 S.W.3d 822, 829 (Mo. banc 2015). The motion court's findings are presumed
correct. McLaughlin v. State, 378 S.W.3d 328, 336–37 (Mo. banc 2012). A movant has the
burden to show by a preponderance of the evidence that the motion court clearly erred in its
ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).
Discussion
In his sole point, Perkins argues the motion court erred in denying his amended motion
because trial counsel was ineffective for failing to investigate and call his girlfriend as a witness
at trial to support his alibi. Specifically, Perkins asserts that counsel’s failure to act as reasonably
competent counsel deprived him of a viable alibi defense. Perkins alleges, but for counsel’s
failure, there is a reasonable probability that he would not have been convicted.
To succeed on a claim of ineffective assistance of counsel, a movant must show by a
preponderance of the evidence facts, not mere conclusions, demonstrating: (1) counsel failed to
conform to the degree of skill, care, and diligence of a reasonably competent attorney under
similar circumstances, and (2) counsel's deficient performance prejudiced the movant. Strickland
v. Washington, 466 U.S. 668, 687 (1984); McLaughlin, 378 S.W.3d at 337. If a movant fails to
satisfy either element of the test, they are not entitled to relief. Creighton v. State, 520 S.W.3d
416, 422 (Mo. banc 2017).
4 “A movant must overcome the strong presumption that trial counsel's conduct was
reasonable and effective.” Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (citing Davis v.
State, 486 S.W.3d 898, 906 (Mo. banc 2016) (internal quotations omitted)). “To overcome this
presumption, a movant must identify specific acts or omissions of counsel that, in light of all the
circumstances, fell outside the wide range of professional competent assistance.” Id. “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).
“Strategic choices made after a thorough investigation of the law and the facts relevant to
plausible opinions are virtually unchallengeable.” Id. “It is not ineffective assistance of counsel
to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy.” Id.
“Prejudice occurs when there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Hosier, 593
S.W.3d at 81 (quoting Davis, 486 S.W.3d at 906).
To succeed on a claim of ineffective assistance of counsel for failure to investigate and
call a witness at trial, the movant must show that: (1) counsel knew or should have known of the
existence of the witness, (2) the witness could be located through a reasonable investigation, (3)
the witness would testify, and (4) the testimony of the witness would have produced a viable
defense. Shockley, 579 S.W.3d at 906. “Trial counsel's decision not to call a witness is
presumptively a matter of trial strategy and will not support a movant's claim of ineffective
assistance of counsel unless a movant clearly establishes otherwise.” Jones v. State, 519 S.W.3d
879, 885 (Mo. App. E.D. 2017).
In his deposition, Perkins testified that he informed trial counsel that S.T. would support
his alibi that he was with her at her apartment at the time of the crime, and that he provided trial
5 counsel with S.T.’s recent address, business website, and criminal history, as she had recently
been incarcerated. However, Perkins explained that that he lost contact with her during the
pendency of his trial. Perkins stated that trial counsel informed him that S.T. would not be a
credible witness on account of her criminal history. Perkins asserted that S.T. would have been
willing to testify.
Trial counsel testified during the evidentiary hearing that Perkins initially informed him
that he was not responsible for the murder of Victim and that S.T. would support his alibi that he
was not at the scene of the crime that night. Trial counsel stated that Perkins gave him contact
information for S.T. and that either he or his investigator attempted to contact her, but they were
ultimately unsuccessful. Trial counsel testified that he would have made a decision on whether to
call her as a witness at trial based on his determination of her credibility. Trial counsel testified
that he and Perkins ultimately settled on a strategy to target one of the other passengers in the car
as the shooter by destroying the credibility of the witnesses who identified Perkins as the
shooter, therefore not pursuing an alibi defense theory.
Perkins has failed to meet his burden showing that trial counsel acted unreasonably in
failing to call S.T. as a witness. While Perkins established that trial counsel was aware of S.T.,
Perkins did not prove that S.T. could have been reasonably located, would have been willing to
testify, and that her testimony would have been beneficial to his defense. Indeed, trial counsel’s
testimony regarding his difficulties in contacting S.T. and post-conviction counsel’s own failure
to effectuate service upon S.T. to testify at the evidentiary hearing or give a deposition instead
supports a finding that she could not have been reasonably located and that she would not have
been willing to testify. See Hollings v. State, 662 S.W.3d 821, 830 (Mo. App. E.D. 2023); see
also Stewart v. State, 640 S.W.3d 820, 825 (Mo. App. S.D. 2022). Finally, without S.T.’s
6 testimony on the matter, Perkins’s claim that S.T. would have corroborated his alibi is
insufficient to establish that such testimony would have been beneficial because “[m]ere
conjecture or speculation about potential testimony is not sufficient to establish the required
prejudice.” Id. (citing State v. Dees, 916 S.W.2d 287, 302 (Mo. App. W.D. 1995)). A
“[m]ovant's failure to introduce sufficient supporting evidence at the evidentiary hearing is fatal
to his post-conviction claim.” Id.
Therefore, because Perkins failed to meet his burden showing that trial counsel acted
unreasonably, the motion court did not err in denying the motion. Point denied.
Conclusion
For the reasons set forth above, the judgment of the motion court is affirmed.
Renée D. Hardin-Tammons, J.
Kurt S. Odenwald, P.J., and Michael E. Gardner, J., concur.