Appeal from the Circuit Court of the City of St. Louis Honorable John J. Riley
Jacob Ragland appeals the denial of his Rule 29.15 motion without an evidentiary hearing. Ragland raises three points on appeal claiming the motion court erred because his trial counsel was ineffective for (1) untimely requesting jurors be allowed to take notes, (2) failing to examine various witnesses regarding one of the victims, J.F., seeing his mother ("Mother"), engage in sexual intercourse, and (3) failing to examine various witnesses regarding J.F. watching pornography. Finding no error, we affirm.
All references to Rules are to the Missouri Supreme Court Rules (2017) unless otherwise indicated.
The following are the relevant facts presented at trial as set forth in State v. Ragland, 494 S.W.3d 613, 621 (Mo. App. E.D. 2016):
J.F. stated that Ragland sucked J.F.'s penis with his mouth, put his penis in J.F.'s mouth, and "humped" or rubbed J.F.'s anus with his penis. J.F. used anatomical dolls in his CAC interview to demonstrate this "humping" and "sucking." J.F. also stated that Ragland made J.J. and J.F. suck each other's penises. J.F. said that Ragland showed J.J. "how to do it" and told J.J. to "hump" J.F. and to "suck it"; that Ragland made J.F. suck J.J.; and that Ragland made J.J. suck J.F. J.F. also stated that something came out of Ragland's "wee-wee" and that it was "white stuff."
J.J. stated that Ragland made J.J. put his hand on Ragland's penis, rubbed his penis between J.J.'s legs, "humped" J.J., placed his hand on J.J.'s penis, and placed his mouth on J.J.'s penis, and made J.J. suck his "privacy." J.J. said that something "white," "gooey," and "slimy" came out of Ragland's "hot dog." J.J. also stated that Ragland told him he would kill his mother and sisters if he told anyone.
After the testimony of the first prosecution witness had concluded, defense counsel requested that the jury be allowed to take notes during trial. The State objected to defense counsel's request because the trial had begun and extensive testimony had been heard by the jury without the benefit of taking notes. The trial court denied defense counsel's request, noting its concern "that the first [w]itness's testimony might not be given equal weight with the testimony [the jury] would hear if they had the notepads."
Ragland made a motion for judgment of acquittal at close of all the evidence. The trial court denied the motion and the case was submitted to the jury for deliberations.
J.F. was seven years old at the time of abuse.
J.J. was nine years old at the time of abuse.
The jury convicted Ragland of six counts of first-degree statutory sodomy, three counts of first-degree child molestation, and two counts of use of a child in a sexual performance. Ragland's convictions were affirmed on appeal. Id. Ragland untimely filed a Rule 29.15 amended motion with the circuit court requesting post-conviction relief and an evidentiary hearing. The motion court accepted the untimely motion pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1992). The motion court denied relief without an evidentiary hearing. Ragland timely appeals.
Ragland's counsel stated in a separate motion that the late filing was counsel's mistake and unattributable to Ragland and the court should allow the untimely filing. --------
We will provide other relevant facts as needed throughout our analysis.
Standard of Review
The motion court's judgment will be affirmed unless its findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression the motion court made a mistake. Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010).
A movant is entitled to an evidentiary hearing only if: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the case files or record; and (3) the matter of which movant complains resulted in prejudice to the movant. Maynard v. State, 87 S.W.3d 865, 866 (Mo. banc 2002).
For post-conviction relief based upon ineffective assistance of counsel, a movant must show by a preponderance of the evidence that (1) his attorney failed to exercise the level of skill and diligence a reasonably competent attorney would exercise in a similar situation, and (2) the movant was prejudiced by counsel's failure. Strickland v. Washington, 466 U.S. 668, 687 (1984); McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012). Prejudice means a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993).
Ragland asserts the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because he alleged facts, unrefuted by the record, that his counsel was ineffective for (1) untimely requesting jurors be allowed to take notes, (2) failing to examine various witnesses on whether J.F. had observed his Mother engage in sexual intercourse, and (3) failing to examine various witnesses regarding J.F.'s history of viewing pornography. Each point is denied.
Point I: Juror Note-Taking
Ragland's first point asserts his trial counsel was ineffective for untimely requesting jurors be able to take notes during trial. Ragland argues if jurors took notes, they would have better recalled how the victims' testimony differed from their videotaped interviews. Ragland claims this creates a reasonable probability the jury would have reached a different result. The State argues, and we agree, that any prejudice resulting from a lack of juror note-taking is purely speculative.
There is no right to juror note-taking. See Ragland, 494 S.W.3d at 630 (Mo. App. E.D. 2016) (stating "the decision to allow or not allow juror note-taking lies purely within the sound discretion of the trial court"). Even when note-taking is allowed, jurors must be told they are not required to do so. MAI-CR3d 302.01. Ragland admits in his brief "there is no way of knowing what difficulties the jury had in recalling how the trial testimony differed from the videotaped interviews[.]" Therefore, we are left to speculate as to what notes jurors might have taken if they were allowed, and what facts jurors might have forgotten without notes. To prevail, Ragland was required to state facts demonstrating a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Shurn, 866 S.W.2d at 468. The extent a lack of note-taking may have harmed, or benefitted, Ragland cannot be demonstrated with any reasonable probability. Ragland cites no cases demonstrating that a failure to timely request juror note-taking is grounds for an ineffective assistance of counsel claim. See Thomas v. Lloyd, 17 S.W.3d 177, 190 (Mo. App. S.D. 2000) (stating "[a] point of error left unsupported by citation of relevant authority need not be considered"). Ragland's first point is denied.
Point II: Failure to Elicit Testimony Regarding J.F.'s Observations of Mother Having Sex
Ragland's second point asserts his trial counsel was ineffective for failing to elicit testimony from certain witnesses about whether J.F. observed Mother engage in sexual intercourse. Ragland claims J.F. should have been cross-examined on the issue, and Carmen Jackson (Ragland's girlfriend), Mother, and Carmen Jackson's daughter should have been directly examined about it. Ragland claims eliciting this information would have allowed the jury to consider whether J.F.'s observations of Mother engaged in sexual intercourse was the source of J.F.'s advanced sexual knowledge, and not the sexual abuse by Ragland. The State argues, and we agree, Ragland was not prejudiced because counsel did elicit testimony about J.F. viewing Mother having sex and argued in closing that the jury could consider this as a source of J.F.'s sexual knowledge.
Trial counsel elicited testimony from Carmen Jackson's daughter that Mother would often have sex on a couch in the dining room while J.F. sat in the next room over. In closing, trial counsel argued that J.F. observing Mother have sex could explain why J.F. had advanced knowledge of sexual acts for someone his age. Further evidence of this same fact would have been cumulative. Barnes v. State, 334 S.W.3d 717, 722 (Mo. App. E.D. 2011) (stating "[e]vidence is cumulative when it relates to a matter fully developed by other testimony"). Counsel is not ineffective for failing to develop or introduce cumulative evidence. Forrest v. State, 290 S.W.3d 704, 710 (Mo. banc 2009). The jury was able to consider whether J.F.'s viewing of Mother's sexual intercourse was a source of J.F.'s sexual knowledge. Ragland's claim he was prejudiced by the jury's inability to make such a consideration is refuted by the record. See Jones v. State, 514 S.W.3d 72, 79 (Mo. App. E.D. 2017) (finding movant's claim counsel was ineffective for failing to elicit testimony from medical experts on a certain topic refuted by the record when such testimony was elicited from one expert). Ragland's second point is denied.
Point III: Failure to Elicit Testimony Regarding J.F.'s Viewing of Pornography
Ragland's third point asserts his trial counsel was ineffective for failing to examine J.F., Carmen Jackson, and Mother about whether J.F. had observed pornography. Ragland claims eliciting this information would have helped explain how J.F. knew of the type of sexual acts for which Ragland was convicted, and would have had a reasonable probability of changing the jury's verdict. The State argues no prejudice could be shown in failing to cross-examine J.F. on the issue, that Carmen Jackson's proposed testimony on the matter would have been inadmissible hearsay, and that Ragland's allegation that Mother would have testified that J.F. viewed pornography was refuted by the record. We agree with the State and will address the examination of each witness separately.
Ragland argues J.F. should have been cross-examined about viewing pornography. A movant is required to state facts, not conclusions, warranting relief. Maynard, 87 S.W.3d at 866. Here, Mother and her boyfriend testified J.F. never observed pornography. Ragland makes no allegation that J.F. would have testified to viewing pornography, and Ragland did not list J.F. as a witness to be called at an evidentiary hearing. Instead, Ragland makes the broad allegation that the collective examination of J.F., Carmen Jackson, and Mother would have presented evidence to the jury that J.F. was exposed to pornography. This is a conclusion, not a statement of fact. Accordingly, Ragland failed to state sufficient facts demonstrating further examination of J.F. would have provided evidence J.F. viewed pornography.
Ragland claims Carmen Jackson should have been directly examined about J.F. viewing pornography. Ragland states Carmen Jackson would have testified Mother told her that J.F. watched pornography all the time. Ragland argues this testimony could have been used to prove J.F.'s sexual knowledge came from pornography rather than sexual encounters with Ragland. However, this proposed testimony would have been inadmissible hearsay. See State v. Shaw, 847 S.W.2d 768, 777 (Mo. banc 1993) (stating a witness offering out-of-court statements of another to prove the truth of the matter asserted is inadmissible hearsay). While Ragland could have used this testimony to impeach Mother's contrary testimony, the statement could not be used for its truth. See State v. Nimrod, 484 S.W.2d 475, 479 (Mo. banc 1972) (holding a witness's prior out-of-court statements may be received to impeach the witness, but may not be used as proof of the matter asserted). Ragland could not have used Carmen Jackson's proposed testimony to argue to the jury that J.F.'s sexual knowledge was due to J.F. viewing pornography, as opposed to Ragland's sexual abuse. Ragland's argument here is meritless.
Finally, Ragland claims Mother should have been directly examined about J.F. viewing pornography, and that doing so would have allowed Ragland to argue J.F.'s source of sexual knowledge was pornography. But Mother was cross-examined on the issue and testified J.F. did not watch pornography. The record refutes Ragland's argument that eliciting further testimony on the matter would have benefited his case.
Ragland's claim that counsel was ineffective for failing to examine the above witnesses about J.F.'s history of viewing pornography rests on whether such examinations would have remedied his alleged source of prejudice: the jury's inability to consider whether pornography was the origin of J.F.'s sexual knowledge. Ragland failed, however, to state facts showing further examination of the witnesses regarding J.F.'s alleged viewing of pornography would have produced any evidence allowing the jury to make such a consideration. Ragland's third point is denied.
The motion court's judgment is not clearly erroneous, therefore, the judgment is affirmed.
Philip M. Hess, Judge Lisa P. Page, P.J. and
Roy L. Richter, J. concur.